Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions: (a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator. (b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board or any other federal or state authority. (c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C. (d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent. (e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law. (f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion. (g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus. (h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties. (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus. (k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect. (l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date. (m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request. (n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 3 contracts
Sources: Agency Agreement (MSB Financial Corp.), Agency Agreement (MSB Financial Corp), Agency Agreement (MSB Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Board, the Connecticut Banking Department or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application, the Holding Company Application and the Holding Company Connecticut Application shall have been approved by the Federal Reserve Board and the Connecticut Banking Department not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board Board, the Connecticut Banking Department or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP▇, PC, special counsel for the Primary Parties, which shall also state that ▇K▇▇▇▇▇▇▇▇▇ ▇T▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇K▇▇▇▇▇▇▇▇▇ ▇T▇▇▇▇▇▇▇ & ▇S▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP ▇, PC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP ▇, PC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board Board, the Connecticut Banking Department or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Board, the Connecticut Banking Department or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAWolf & Company, LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAWolf & Company, LLP P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31September 30, 20142015, June 30, 2015 and June 30, 2014 and June the three months ended September 30, 2013 and the six months ended December 31, 2014 2015 and the years ended June 30, 2014 2015 and 20132014, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (BC) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAWolf & Company, LLP P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board Board, the Connecticut Banking Department and any other applicable regulator approving the Conversion Application, the Holding Company Application and the Holding Company Connecticut Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Connecticut Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York Boston evidencing the Bank’s membership therein; (vii) a certificate from the Federal Reserve Bank-Boston evidencing the Bank’s membership therein; (viii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiiix) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shde
Appears in 3 contracts
Sources: Agency Agreement (PSB Holdings, Inc.), Agency Agreement (PB Bancorp, Inc.), Agency Agreement (PB Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations FRB Regulations, the FRB Commitments and Massachusetts Banking Law (except to the extent waived or otherwise approved by the Federal Reserve Board FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission Commission, the Holding Company Application and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board FRB and the Massachusetts Application shall have been approved by the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; , and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the Division or any other federal Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇ delivered pursuant to Section 8(c).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the OfferingOfferings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, propertiesproperties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering Offerings or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board FRB, the Division or any other federal Federal or state authority; and (viiviii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering Offerings or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties Parties, considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Primary Party since the latest dates as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary Parties shall have received from any Governmental Entity the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Primary Parties, taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statutePrimary Parties, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringtaken as a whole; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAWolf & Company, LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAWolf & Company, LLP P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 2011 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors/Trustees of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyTier, other than normal deposit fluctuations for the Mid-Tier Holding CompanyBank, or decreases non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described ; or (D) there was any decrease in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in net income or total interest income, income or net interest income, income or net interest income after provision for loan losses, non-interest income before income tax or increase in provision for loan losses or non-interest expense or net income of the Mid-Tier Holding CompanyTier, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyTier, which are subject to the internal controls of the Mid-Tier Holding CompanyTier, the accounting system and other data prepared by the Mid-Tier Holding CompanyTier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAWolf & Company, LLP P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kl) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission that has declared the Registration Statement effective; (iiiiv) certificates certificate from the Federal Reserve Board Massachusetts Department of Revenue evidencing the valid existence of the MHC MHC; (v) certificate from the Massachusetts Department of Revenue evidencing the valid existence and good standing of the Mid-Tier Holding CompanyTier; (ivvi) a certificate from the New Jersey Banking Department Division evidencing the good standing of the Bank; (vvii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-New York Boston evidencing the Bank’s membership therein; (viiix) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the Massachusetts Application by the Division; and (viiixi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sheng
Appears in 3 contracts
Sources: Agency Agreement (Meridian Bancorp, Inc.), Agency Agreement (Meridian Interstate Bancorp Inc), Agency Agreement (Meridian Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Cullman Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Cullman Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Cullman Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and SEC, the Holding Company Application shall have been approved by the Federal Reserve Board FRB and any other applicable regulator, and the amendments to the Bank’s charter shall have been approved by the OCC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Cullman Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Cullman Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board FRB, the OCC or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares or the Exchange Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Exchange Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Members’ Proxy Statement and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Cullman Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the Cullman Parties delivered pursuant hereto or as such counsel shall reasonably acceptable to request and the Agent.
(e) A blue sky memorandum from ▇opinion of ▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to subsection (c) above.
(e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares and the Exchange Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Cullman Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Cullman Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Cullman Parties independently, or of the Primary Cullman Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Cullman Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vvi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇ LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (vixii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Federal Reserve Board SEC, the FRB, the OCC, the FDIC or any other state or federal or state authority; and (viixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Cullman Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Cullman Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Cullman Party since the latest dates as of which the financial condition of the Cullman Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the Primary Cullman Parties shall have received from any Governmental Entity the OCC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Cullman Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Cullman Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Cullman Parties, threatened against the any of the Primary Cullman Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares and the Exchange Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Cullman Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, ▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, ▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142020 and 2019, June 30, 2014 and June 30, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132020, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Cullman Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) stating that (AB) during the period from the date of the recent developments latest financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt of the Mid-Tier Holding CompanyBank; or (C), other than normal deposit fluctuations for the Mid-Tier Holding Companyexcept as set forth in said letter, or decreases there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, ; or (D) there were was any decreases, as compared with the corresponding period in the preceding fiscal year, decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income before income tax expense or net income or increase in non-interest expense or the provision for loan losses of the Mid-Tier Holding CompanyBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, ▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shre
Appears in 2 contracts
Sources: Agency Agreement (Cullman Bancorp, Inc. /MD/), Agency Agreement (Cullman Bancorp, Inc. /MD/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Melrose Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Melrose Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Melrose Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board Commissioner, the FRB and any other applicable regulatorthe FDIC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Commissioner or any other applicable regulatorthe FDIC.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Applications and the Holding Company Application shall have been approved by the Federal Reserve Board Commissioner, the FDIC and the FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Melrose Parties’ knowledge, threatened by the Commission, the Federal Reserve Board Commissioner, the FDIC or any other federal or state authoritythe FRB.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Melrose Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Melrose Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Melrose Parties independently, or of the Primary Melrose Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Melrose Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Melrose Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Melrose Parties, threatened by the Federal Reserve Board Commissioner, the FDIC, the FRB or any other federal or state authority; and (viiviii) to the best knowledge of the Primary Melrose Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Commissioner or any other applicable regulator approving the ConversionFDIC.
(gf) None of the Primary Melrose Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Melrose Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Melrose Parties shall have received from any Governmental Entity the Commissioner, the FDIC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Melrose Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Melrose Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Melrose Parties, threatened against the any of the Primary Melrose Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingMelrose Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Melrose Parties.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP▇▇▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP ▇▇▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC Commissioner, the FDIC and the FRB and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Melrose Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commissioner, the FDIC and the FRB and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP ▇▇▇▇▇▇▇▇▇ in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kj) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Melrose Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator Commissioner approving the Massachusetts Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order letter from the FDIC not objecting to the FDIC Conversion Application; (iii) a copy of the letter from the FRB approving the Holding Company Application; (iv) confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (ivv) a certificate from the New Jersey Banking Department Commissioner evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-New York Boston evidencing the Bank’s membership therein; (viiviii) a certificate from the Maryland State Department of Assessments and & Taxation evidencing the good standing of the Holding Company; Company and (viiiix) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(om) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Melrose Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Melrose Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Melrose Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (Melrose Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, Agents hereunder are subject, to the extent not waived in writing by the AgentAgents, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion Conversion, including the contribution to the Foundation, in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Commissioner and the FDIC, the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board Commissioner and not later than 5:30 p.m. on objected to by the date of this Agreement, or with the Agent’s consent at a later time and dateFDIC; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of Company’s, the Primary PartiesMHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the CommissionCommissioner, the Federal Reserve Board FDIC, the FRB the SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent Agents shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent Agents and for its their benefit, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Primary PartiesCompany, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementthe MHC, the Mid-Tier Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is legally existing as a business corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Connecticut; the MHC has been duly incorporated and is legally existing as a nonstock corporation and mutual holding company under which they were made, not misleadingthe laws of the State of Connecticut; the Mid-Tier Holding Company has been duly incorporated and is legally existing as a business corporation and mutual holding company subsidiary holding company under the laws of the State of Connecticut.
(ii) since Each of the Company, the MHC and the Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package Prospectus and any Permitted Free Writing Prospectus.
(iii) The Bank is a legally existing Connecticut-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus. Upon completion of the Conversion in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law (exclusive of any opt in provisions) , and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Offering-Effects of Conversion on Depositors and Borrowers-Effect on Liquidation Rights” and “-Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued in connection with incorporation of the Company, no Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the Prospectus that extent payment therefor in cash has not been so set forthreceived by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Connecticut law or regulation, the Company’s Certificate of Incorporation or pursuant to the regulations of the Commissioner, FDIC or FRB (except to the extent that subscription rights and priorities thereto exist pursuant to the Plan), and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Shares complies in all material respects with the requirements of Connecticut General Corporation Law. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC, the Mid-Tier Holding Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in contribution to the earnings, capital, properties, business or prospects Foundation. The execution and delivery of this Agreement and the consummation of the Primary Parties independently, or transactions contemplated hereby have been duly authorized by all necessary action on the part of the Primary Parties considered as one enterpriseCompany, whether or not arising in the ordinary course of business MHC, the Mid-Tier Holding Company and the conditions set forth Bank; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Bank, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Bank in this Section 8 have been satisfied; accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the representations safety and warranties in Section 4 are true soundness of insured depository institutions, and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) applicable law or public policy with respect to the Primary Parties indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the Commissioner and not objected to by the FDIC, as applicable, and the Holding Company Application has been approved by the FRB and the Prospectus and Corporator’s Informational Material have been declared effective and cleared by the Commissioner and the FDIC, no action has been taken, and to such counsel’s knowledge, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan and the contribution to the Foundation have been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, approved by the required vote of the Corporators of the MHC and approved by the requisite vote of the shareholders of the Mid-Tier Holding Company.
(ix) Subject to the satisfaction of the conditions to the Commissioner’s, the FDIC’s and the FRB’s approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, including the contribution to the Foundation, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433, and such counsel has been advised by the SEC staff that no stop order proceedings with respect thereto have been instituted or, to the knowledge of such counsel, are pending or threatened under the 19▇▇ ▇▇▇.
(xi) At the time the Conversion Application, including the Prospectus and Corporator’s Informational Material and Shareholders’ Proxy Statement contained therein, was approved by the Commissioner, the FDIC and the FRB, the Conversion Application, including the Prospectus and Corporator’s Informational Material and Shareholders’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1934 Act Regulations (other than the Corporator’s Informational Material), federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Conversion Application, we have assumed that the statements made therein are correct and complete.
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and applicable federal law.
(xiii) To such counsel’s knowledge, no action, suit or proceeding at law or in equity is pending or threatened in writing against or affecting any of the Company, the MHC, the Mid-Tier Holding Company or the Bank or any of their properties before or by any court or governmental official, commission, board or other administrative agency, authority or body, or any arbitrator, wherein an unfavorable decision, ruling or finding would have a material adverse effect on the ability of the Company, the MHC, the Mid-Tier Holding Company or the Bank to consummate the transactions contemplated by this Agreement or which is required to be disclosed in the Registration Statement or the Prospectus and is not so disclosed.
(xiv) To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xv) The Plan complies in all material respects with all material agreements applicable laws, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementCommissioner, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering FDIC or the delivery of the Shares FRB on the terms and in Plan, the manner contemplated in Conversion Application, the Holding Company Application or the Prospectus.
(hxvi) Prior to The execution and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution delivery of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as incurrence of the date hereof obligations herein set forth and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules consummation of the Public Company Accounting Oversight Board transactions contemplated herein do not (United Statesa) and stating conflict with or constitute a breach of, or default under, or result in effect that in its opinion the financial statements and related notes creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company as of December 31or the Bank pursuant to any material contract, 2014indenture, June 30mortgage, 2014 and June 30loan agreement, 2013 and note, lease or other instrument to which the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding CompanyMHC, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and or the Bank is a party that is filed as an exhibit to the Registration Statement (B) during other than the period from the date establishment of the recent developments financial information included liquidation accounts), (b) result in the Prospectus to a specified date not more than three business days prior to the date any violation of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income provisions of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance Certificate of Incorporation or Bylaws of the procedures referred to in clause (ii) Company or the Certificate of this subsection (i), they have compared with Incorporation or the general accounting records Bylaws of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by or the Mid-Tier Holding Company Bank or, (c) result in any violation of any applicable federal or Connecticut law, act, regulation (except that no opinion with respect to the securities and from which blue sky laws of various jurisdictions or the “Recent Developments” information included rules or regulations of FINRA and/or Nasdaq Global Select Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) SBR Mortgage Company, SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and Rockville Bank Mortgage, Inc. are validly existing as corporations under the laws of the State of Connecticut, and have the power and authority to own, lease and operate their properties and to conduct their businesses as described in the Prospectus was derivedProspectus; the activities of SBR Mortgage Company, a reading of the minutes of the meetings of the Boards of Directors SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting mattersRockville Bank Mortgage, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included Inc. as described in the Prospectus are not in conformity with permitted to subsidiaries of a Connecticut chartered savings bank under the 1933 Act, applicable accounting requirements laws of the Commission, and GAAP applied on a basis substantially consistent with that State of Connecticut; all of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties issued and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of outstanding shares of common stock of SBR Mortgage Company, SBR Investment Corp., Inc., Rockville Financial Services, Inc., Rockville Bank Commercial Properties, Inc., Rockville Bank Residential Properties, Inc. and Rockville Bank Mortgage, Inc. are owned beneficially and of record by the Bank free and clear of any security interest, mortgage, pledge, lien or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Dateencumbrance.
(mxviii) At or prior to The Foundation has been duly incorporated and is validly existing as a non-stock corporation under the Closing Date, the Agent shall receive: (i) a copy laws of the letters from the Federal Reserve Board State of Connecticut with corporate power and any other applicable regulator approving the Conversion Application authority to own, lease and the Holding Company Application operate its properties and authorizing the use of to conduct its business as described in the Prospectus; (ii) a copy no approvals are required for the contribution to the Foundation as described in the Prospectus other than those set forth in the approval order of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestCommissioner dated December 30, 2010.
(nxix) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or The information in the over-the-counter market, or quotations halted generally on Prospectus under the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material captions “Our Dividend Policy” “Supervision and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shRegulation,” “Taxation,” “T
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Sources: Agency Agreement (Rockville Financial New, Inc.), Agency Agreement (Rockville Financial Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all of the respective representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects (except for those representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects), the condition that each of the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion Merger in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorOCC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Merger imposed upon them by the Federal Reserve Board or any other applicable regulatorOCC to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by Prior to the Commission and Closing Date, the Conversion Application and the Holding Company Application Plan shall have been approved by the Federal Reserve Board Voting Members of Commonwealth in accordance with the Plan, the Conversion Regulations, the applicable provisions, if any, of Commonwealth’s charter and bylaws and the Proxy Statement.
(c) The Applications (other than the Holding Company Waiver Request) shall have been approved by the OCC and the FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and datedate (which consent is hereby granted with respect to the Holding Company Waiver Request); and at the Closing Date, no stop order suspending the effectiveness approval of the Registration Statement Applications shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission OCC or FRB, or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the CommissionSEC, FRB, the Federal Reserve Board or OCC, any other federal state authority or state authorityGovernmental Authority.
(cd) At the Closing Date, the The Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP, special in form and substance reasonably satisfactory to the Agent and counsel for the Primary Agent, in the form attached hereto as Exhibit D. The opinion may be limited to matters governed by the laws of the United States and of the State of Maryland. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Town Parties and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Town Parties, which . The opinion of such counsel for the Town Parties shall also state that ▇▇▇▇▇▇▇it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Town Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(e) The Agent shall have received the letter of L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed reasonably satisfactory to the Agent and for its benefitAgent’s counsel, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇effect that during the preparation of the Registration Statement and the Prospectus, L▇▇▇ ▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Town Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(d) of this Agreement), L▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of L▇▇▇ ▇▇▇▇▇▇ that caused L▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the SEC and as of the date of such letter contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included in or omitted from, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus).
(f) A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the Prospectus, to the Holding Company Prospectus with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawlaws.
(fg) The Agent shall have received the opinion, dated as of the Closing Date, of N▇▇▇▇▇ ▇▇▇▇, counsel for Commonwealth, in form and substance satisfactory to the Agent and counsel for the Agent, in the form of Exhibit E. The opinion may be limited to matters governed by the laws of the United States. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of Commonwealth and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to Commonwealth. The opinion of such counsel for Commonwealth shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for Commonwealth also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(h) The Agent shall have received the letter of N▇▇▇▇▇ ▇▇▇▇, in form and substance satisfactory to the Agent and the Agent’s counsel, to the effect that during the preparation of the Registration Statement and the Prospectus, N▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Town Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(g), N▇▇▇▇▇ ▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of N▇▇▇▇▇ ▇▇▇▇ that caused N▇▇▇▇▇ ▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the SEC and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Registration Statement and Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Registration Statement and Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Town Parties independentlyand the conditions set forth in this Section 10 have been satisfied; (iii) since the respective dates as of which information is given in the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties considered as one enterpriseBank, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Town Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the ConversionConversion Merger, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board SEC, the OCC, or any other federal Governmental Authority.
(j) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of Commonwealth in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) since the date the Prospectus became authorized for final use, there has been no material adverse change in the condition, financial or state authorityotherwise, or in the earnings, capital, properties or business of Commonwealth and the conditions set forth in this Section 10 have been satisfied; (ii) the representations and warranties in Section 5 are true and correct with the same force and effect as though expressly made at and as of the Closing Date (viiexcept to the extent made as of an earlier date); (iii) Commonwealth has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by it after the Closing Date; (vi) no order suspending the Conversion Merger has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesCommonwealth, no person has sought to obtain regulatory or judicial review of threatened by the final action of the Federal Reserve Board OCC, or any other applicable regulator approving the ConversionGovernmental Authority.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent (i) there shall have been no material adverse change in the financial condition, results of operations or business of the any Primary Parties considered as one enterprise, from and as of Party since the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the no Primary Parties Party shall have received from any Governmental Entity the FRB or OCC any direction (oral or written) to make any material change in the method of conducting their its business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and or which would be reasonably be expected likely to have a Material Adverse EffectEffect on the Town Parties, taken as a whole, or on Commonwealth, as applicable; (iii) none of the Primary Parties shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board board, other administrative agency or other administrative agencyGovernmental Authority, not disclosed in the Prospectus, shall be pending or, to the knowledge of any of the Primary Parties, threatened against any of the Primary Parties Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringsuch Primary Party; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, C▇▇▇▇ H▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, C▇▇▇▇ H▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 20142013, June 30, 2014 and June September 30, 2013 and 2012, and the six related consolidated statements of operations, comprehensive income (loss), changes in shareholders’ equity and cash flows for the three months ended December 31, 2014 2013 and the years ended June September 30, 2014 2013 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, the Securities Act Regulations, the Exchange Act Regulations, and related published rules and regulations of the SEC and the 1933 ActSEC; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) reading of the unaudited interim latest available financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derivedCompany, a reading of the minutes of the meetings of the Boards Board of Directors and committees of each of the Primary Parties Company and the Board of Directors of the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such the audited consolidated financial statements and any unaudited consolidated interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the CommissionSecurities Act, the Exchange Act, the Securities Act Regulations, the Exchange Act Regulations, related published rules and GAAP applied on a basis substantially consistent with that regulations of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
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Sources: Agency Agreement (Poage Bankshares, Inc.), Agency Agreement (Poage Bankshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Hoyne Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Hoyne Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Hoyne Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreementand, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Hoyne Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Hoyne Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Hoyne Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of V▇▇▇▇▇ Price P.C., in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the Hoyne Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering its opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Hoyne Parties), nothing has come to its attention that would lead it to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from W▇▇▇▇▇ LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that W▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of W▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇consolidated financial statements of H▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the Hoyne Parties, a reading of the minutes of the meetings of the Boards of Directors of Hoyne Parties and committees thereof and consultations with officers of the Hoyne Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such opinion unaudited consolidated financial statements included in rendering the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets, accruing troubled debt restructured loans, or material decrease in the deposits, total assets, total loans, the allowance for loan losses or stockholders’ equity, or there was any material decrease in net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Hoyne Savings for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion pursuant included in the Prospectus and the performance of the procedures referred to Section 8(din clause (ii) of this Agreementsubsection (d), they have compared with the general accounting records of the Hoyne Parties, which are subject to the internal controls of the accounting system of the Hoyne Parties and other data prepared by the Hoyne Parties from accounting records, to the extent specified in form such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and substance as attached hereto as Exhibit C.they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ▇W▇▇▇▇▇ LLP relating dated the Closing Date, addressed to the OfferingAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselHoyne Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary Hoyne Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of Hoyne Savings by Hoyne Bancorp, or the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date:
(i) confirming that said firm is independent of the Hoyne Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Hoyne Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Hoyne Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Hoyne Parties considered independently, or the Hoyne Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and Application, including the Holding Company Application and authorizing the use establishment of the Prospectus; Foundation, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department FHLB-Chicago evidencing the good standing of the Bank; Hoyne Savings’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s Hoyne Savings’ insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Hoyne Parties will have received from the Federal Reserve, the IDFPR, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Offering provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a Hoyne Party and delivered to the Agent or to counsel for the delivery of Agent shall be deemed a representation and warranty by such Hoyne Party, to the Shares on Agent as to the terms and in the manner contemplated in the Registration Statement and the Prospectusstatements made therein.
(o) At or A blue sky memorandum from V▇▇▇▇▇ Price P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to Hoyne Bancorp with a copy thereof addressed to Agent or upon which V▇▇▇▇▇ Price P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(p) At the Closing Date, counsel to the Agent shShares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Markets.
Appears in 2 contracts
Sources: Agency Agreement (Hoyne Bancorp, Inc.), Agency Agreement (Hoyne Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CF Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CF Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application MHC Notice and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreementand, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary CF Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CF Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the MHC Notice, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the CF Parties, at which conferences the contents of the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements of the Bank prepared by the CF Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the CF Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in form and substance as reasonably acceptable clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the AgentClosing Date.
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating At the Closing Date, counsel to the Offering, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCF Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary CF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator in approving the ConversionPlan or to enjoin the Reorganization.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the CF Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary CF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary CF Parties considered independently, or the CF Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the MHC Notice and a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; MHC Notice, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department FHLB-Cincinnati evidencing the good standing of the Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering or the delivery sale of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusShares.
(om) At Prior to and at the Closing date, none of the CF Parties will have received from the Federal Reserve, the OCC or prior the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Closing DateAgent).
(n) All such opinions, counsel certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Cincinnati Bancorp), Agency Agreement (Cincinnati Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on OTS, the date Charter Applications have been approved by the FDIC and New Jersey Department of this AgreementBanking and Insurance, or with the Agent’s consent at a later time as applicable, and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the Federal Reserve Board FDIC, the New Jersey Department of Banking and Insurance, the Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C. and/or local counsel acceptable to Section 8(d) of this Agreementthe Agent, in form and substance as attached hereto as Exhibit C.satisfactory to the Agent and counsel for the Agent to the effect that:
(di) At The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and Insurance; and at the Closing Date, the Agent shall issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have received a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the favorable opinionlaws of the United States, dated with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and addressed the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in approving the Applications filed with such agencies, respectively.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its benefitown opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, P.C. in form and substance as reasonably acceptable to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent.
, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (e) A blue sky memorandum from without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall state ▇, P.C. has not independently verified the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining accuracy, completeness or confirming exemptions, qualifications or the registration fairness of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given contained in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shState
Appears in 2 contracts
Sources: Agency Agreement (Oritani Financial Corp), Agency Agreement (Oritani Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary HF Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary HF Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary HF Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board and the OCC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on and the OCC, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary HF Parties, threatened by the Commission Federal Reserve, the OCC or any state authority, other regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the HF Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board OCC or any other federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP▇, special PC, in form and substance satisfactory to the Agent and counsel for the Primary Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the HF Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the HF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇receive a letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At PLLC dated the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date date hereof and addressed to the Agent and for its benefitAgent, of ▇▇▇▇▇▇▇▇▇▇ ▇▇such letter (i) confirming that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for PLLC is a firm of independent public accountants within the Agentmeaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in form and substance as reasonably acceptable to effect that in the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ opinion of ▇▇▇▇▇▇ LLP relating & ▇▇▇▇▇, PLLC, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the Offeringapplicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, including Agent’s participation thereinon the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the HF Parties, shall have been furnished a reading of the minutes of the meetings of the Boards of Directors of the HF Parties and committees thereof and consultations with officers of the HF Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the mailing date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the Holding Company date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the HF Parties, which are subject to the internal controls of the accounting system of the HF Parties and other data prepared by the HF Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a copy thereof addressed to Agent or upon which ▇▇▇▇▇ letter from ▇▇▇▇▇▇ LLP shall state & ▇▇▇▇▇, PLLC dated the Agent may rely. The blue sky memorandum will relate Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of obtaining or confirming exemptions, qualifications or such letter shall not be more than three business days prior to the registration of the Shares under applicable state securities lawClosing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselHF Parties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv4) the Primary HF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v5) no stop order has been issued or, to their knowledge, is threatened, by the OCC or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the OCC or any other federal or state authority; and and
(vii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator the OCC in approving the Applications or to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ Financial Advisors, Inc., dated as of the Closing Date,
(1) confirming that said firm is independent of the HF Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the HF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary HF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary HF Parties considered independently, or the HF Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: parties will have received (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Holding Company Application; (ii) a copy of the letter from the OCC approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department FHLB-Topeka evidencing the good standing of the Bank’s membership therein; (v) a certificate from the FDIC Secretary of State of the State of Maryland evidencing the Bank’s insurance valid existence of accountsthe Company; (vi) a certificate from certified copy of each of the FHLB-New York evidencing the Bank’s membership thereinHF Parties’ Charter and Bylaws, as applicable; and (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the document that Agent may reasonably request.
(nl) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i1) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii2) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii3) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the HF Parties will have received from the Federal Reserve or the delivery of the Shares on the terms and OCC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Closing Date, counsel provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any HF Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such HF Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Central Plains Bancshares, Inc.), Agency Agreement (Central Plains Bancshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, all requirements of Indiana law, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPBarnes & Thornburg, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇Company ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementhe Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing federally chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Indianapolis. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion-Principal Effects of Conversion-Effect on Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Common Shares have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS. The OTS has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS's approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or The Nasdaq Stock Market (as to which no opinion need by rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the Closing Datetime the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Agent shall have received Conversion Application, including the favorable opinionProspectus contained therein, dated complied as to form in all material respects with the requirements of the Closing Date Conversion Regulations, federal and addressed state law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agentwhich no opinion need be rendered).
(exii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to At the Offeringtime that the Registration Statement became effective, including Agent’s participation (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, shall have been furnished prior as to which no opinion need be rendered), complied as to form in all material respects with the mailing requirements of the Prospectus1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration requirements of the Shares under applicable state securities 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(fxiii) At the Closing Date, the Agent shall receive a certificate The terms and provisions of the Chief Executive Officer and the Chief Financial Officer of each Shares of the Primary Parties Company conform, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Dateall material respects, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given description thereof contained in the Registration StatementStatement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the General Disclosure Package Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus, no event has occurred that should have been set forth Prospectus of such documents and exhibits is accurate in an amendment or supplement all material respects and fairly presents the information required to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown.
(iiixvi) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied The Plan complies in all material respects with all material agreements applicable federal and satisfied all conditions on their part Indiana laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to be performed or satisfied at or prior to the Closing Datesuch counsel's Actual Knowledge, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OTS, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, instituted or threatened by the Federal Reserve Board OTS, the Commission, the FDIC, or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and ProspectusConversion Application, any material loss the Holding Company Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary Parties considered as one enterpriseCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, from the execution and as delivery of this Agreement, the incurrence of the latest date as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) none the establishment of the Primary Parties shall have received liquidation account); and such action will not result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Bank or, to such counsel's Actual Knowledge, result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or The Nasdaq Stock Market need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Indiana. The Bank's Charter and Bylaws comply in all material respects with federal law.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from any Governmental Entity any direction (oral the OTS or written) the FDIC to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Partiesits respective business.
(ixxi) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial The information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to under the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, captions "Regulation," "The Conversion," "Restrictions on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing Acquisition of the Holding Company; " and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent "Description of Capital Stock," to the date hereofextent that such information constitutes matters of law, there shall not have occurred any summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or Conversion process in the over-the-counter marketProspectus under the caption "The Conversion" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or quotations halted generally on legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Nasdaq Stock Market, Prospectus of statutes or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been regulations are accurate summaries and fairly present the information required by either of such exchanges or by order to be shown. The information under the caption "The Conversion-Principal Effects of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on Conversion--Tax Effects" has been reviewed by such counsel and fairly describes the operations of commercial banksopinions rendered by them to the Company and the Bank with respect to such matters. In addition, or a general moratorium on such counsel shall state that during the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery preparation of the Shares on the terms and in the manner contemplated in Conversion Application, the Registration Statement and the Prospectus.
, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Conversion Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in the Conversion Application, the Registration Statement or the Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (orelying as to materiality as to factual matters on certificates of officers and other factual representations by the Company and the Bank), nothing has come to their attention that would lead them to believe that the Conversion Application, the Registration Statement, the Prospectus, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) At or prior to the Closing Date, counsel to the Agent shcontained an untrue statement of a mate
Appears in 2 contracts
Sources: Agency Agreement (Lincoln Bancorp /In/), Agency Agreement (Lincoln Bancorp /In/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementOTS, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C. and/or local counsel acceptable to Section 8(d) of this Agreementthe Agent, in form and substance as attached hereto as Exhibit C.satisfactory to the Agent and counsel for the Agent to the effect that:
(di) At The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; and at the Closing Date, the Agent shall issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have received a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the favorable opinionlaws of the United States, dated with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Holding Company, by the laws of the State of Maryland. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Members in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “The Conversion and Offering - Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “The Conversion and Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ParenteBeard LLP to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and addressed the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications filed with the OTS.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Supervision and Regulation,” “The Conversion and Offering - Material Income Tax Consequences” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Colonial Bankshares, Inc.,” “Restrictions on Acquisition of Colonial Financial Services, Inc.,” “Description of Capital Stock of Colonial Financial Services, Inc. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to the Agent and together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties shall also state that the Agent’s counsel may rely for purposes of its benefitown opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, P.C. in form and substance as reasonably acceptable to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent.
, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (e) A blue sky memorandum from without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP relating & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the Offeringattention of Luse, including Agent’s participation thereinGorman, shall have been furnished prior to the mailing of the Prospectus▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, to the Holding Company with a copy thereof addressed to Agent or upon which P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall state & ▇▇▇▇▇▇, P.C. to believe that the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement at the time it was declared effective by the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at Commission and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect or that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shGeneral Disclosu
Appears in 2 contracts
Sources: Agency Agreement (Colonial Financial Services, Inc.), Agency Agreement (Colonial Financial Services, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary NB Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary NB Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary NB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OCC, the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the OCC and Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementReserve, or with the Agent’s consent at a later time and date; and respectively, and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary NB Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the NB Parties’ knowledge, threatened by the CommissionOCC, the Federal Reserve Board Reserve, the Commission, or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.B:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the NB Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the NB Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of ▇▇▇▇▇▇a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP PC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state ▇, PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselNB Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary NB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vi) no order suspending the ConversionOCC, the Offering or Federal Reserve, the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board OCC in approving the Plan or any other applicable regulator approving to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the NB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the NB Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary NB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary NB Parties considered independently, or the NB Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the Conversion Application and a copy of the letters from the Federal Reserve Board and any other applicable regulator OCC approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; Application, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department FHLB-Indianapolis evidencing the good standing of the Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock MarketMarket (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing date, none of the NB Parties will have received from the Federal Reserve, the OCC or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior FINRA shall have confirmed that it has not raised any objection with respect to the Closing Datefairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(p) All such opinions, counsel certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (New Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Winchester Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Winchester Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Winchester Parties shall have conducted the Conversion Reorganization and the establishment and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the Massachusetts Regulations, the Conversion and Related Regulations and the Control Act Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorDivision, the FDIC or the FRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board Division, the FDIC, the FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and SEC, the Holding Company Application shall have been approved by the Federal Reserve Board FRB, the Massachusetts Reorganization Application shall have been approved by the Division and the FDIC Applications shall have been approved or not been objected to, as applicable, by the FDIC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Winchester Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Winchester Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board Division, the FDIC, the FRB or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Foundation Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Information Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Winchester Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the Winchester Parties delivered pursuant hereto or as such counsel shall reasonably acceptable to request and the Agent.
(e) A blue sky memorandum from ▇opinion of ▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to subsection (c) above.
(e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Mid-Tier Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares and the Foundation Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Winchester Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Winchester Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Winchester Parties independently, or of the Primary Winchester Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Winchester Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vvi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Mid-Tier Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to Wolf & Company, P.C. and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Mid-Tier Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (vixii) no order suspending the ConversionReorganization, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Federal Reserve Board SEC, the Division, the FDIC, the FRB or any other state or federal or state authority; and (viixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Division approving the Massachusetts Reorganization Application, including the Plan included therein; or the FDIC approving or not objecting, as applicable, to the FDIC Applications including the FDIC Notice and the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application, the Division’s approval of the Massachusetts Reorganiztion Application or the FDIC’s approval of or non-objection to, as applicable, to each of the FDIC Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB, the Division, the FDIC or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Division or the FDIC.
(g) None of the Primary Winchester Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Winchester Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Winchester Party since the latest dates as of which the financial condition of the Winchester Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the Primary Winchester Parties shall have received from any Governmental Entity the Division, the FDIC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Winchester Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Winchester Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Winchester Parties, threatened against the any of the Primary Winchester Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Winchester Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAWolf & Company, LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAWolf & Company, LLP P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June 30, 2014 2024 and June 302023, 2013 and the six months ended December 31, 2014 and for each of the years in the two-year period ended June 30, 2014 and 20132024, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors or Trustees, as applicable, of each of the Winchester Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim consolidated financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; (ii) stating that (AB) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in consolidated long-term or short-term debt or non-performing assets of the Mid-Tier Holding CompanyBank; (C) except as set forth in said letter, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases there was any decrease in the total assets, total investment securities, total loans, the allowance for loan credit losses, total deposits deposits, or total equity surplus of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest consolidated balance sheet included in the Prospectus; or (D) there was any decrease in total interest and dividend income, net interest income, net interest income after provision for credit losses, other income or net income or increase in interest expense, operating expense or the provision for credit losses of the Bank, in each case for the period commencing immediately after the period covered by the latest consolidated balance sheet and net income (loss) statement included in the Prospectus to and ended on a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, this Agreement as compared with to the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shtha
Appears in 2 contracts
Sources: Agency Agreement (Winchester Bancorp, Inc./Md/), Agency Agreement (Winchester Bancorp, Inc./Md/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary GB Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary GB Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary GB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreementand, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary GB Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the GB Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the GB Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the GB Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, Conversion Applications, the Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the GB Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the GB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the GB Parties, which are subject to the internal controls of the accounting system of the GB Parties and other data prepared by the GB Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in form and substance as reasonably acceptable clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the AgentClosing Date.
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating At the Closing Date, counsel to the Offering, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselGB Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary GB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by GBI, or the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the GB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the GB Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary GB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary GB Parties considered independently, or the GB Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; Application, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; , (viiv) a certificate from the Maryland State Department of Assessments and Taxation FDIC evidencing the good standing Bank’s and Commercial Bank’s insurance of the Holding Company; accounts, and (viiivi) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the GB Parties will have received from the Federal Reserve, the OCC, the Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents will be in compliance with the Offering provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a GB Party and delivered to the Agent or to counsel for the delivery of Agent shall be deemed a representation and warranty by such GB Party, to the Shares on Agent as to the terms and in the manner contemplated in the Registration Statement and the Prospectusstatements made therein.
(o) At or A blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the Closing Datemailing of the Prospectus, counsel to GBI with a copy thereof addressed to Agent or upon which L▇▇▇ ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(p) To the extent a sale or other disposition or transfer of shares of common stock or other securities of GBI is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit B hereto shall deliver to the Agent sha “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of GBI on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 2 contracts
Sources: Agency Agreement (Generations Bancorp NY, Inc.), Agency Agreement (Generations Bancorp NY, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Mutual Savings Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Mutual Savings Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Mutual Savings Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OCC, the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the OCC and the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementReserve, or with the Agent’s consent at a later time and date; and respectively and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued by the Commission under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Mutual Savings Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Mutual Savings Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authoritycontribution, or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Magnolia Bancorp.
(c) At the Closing Date, the Agent shall have received the favorable opinion, received:
(1) The opinion dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPSilver, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementLLP, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(d2) At the Closing Date, the Agent shall have received the favorable opinionThe letter, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of Silver, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special in form and substance satisfactory to the Agent and counsel for the Agent, in form and substance as reasonably acceptable to the Agent.effect as set forth in the last paragraph of Exhibit A.
(ed) A blue sky memorandum Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP relating dated the date hereof and addressed to the OfferingAgent, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP shall state is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇▇▇▇▇▇ LLP, the financial statements of Mutual Savings included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review of the latest available unaudited interim financial statements prepared by Mutual Savings, a reading of the minutes of the meetings of the Boards of Directors of the Mutual Savings Parties and committees thereof and consultations with officers of the Mutual Savings Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings, non-performing loans or special mention loans, or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity of Mutual Savings, or there was any decrease in total interest income, net interest income, net interest income after provision for loan losses, income (loss) before income taxes or in total net income (loss) of Mutual Savings for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Mutual Savings, which are subject to the internal controls of the accounting system of Mutual Savings and other data prepared by Mutual Savings from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇▇ LLP dated the Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of obtaining or confirming exemptionsthis Section 11, qualifications or the registration of “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Shares under applicable state securities lawClosing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselMutual Savings Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary Mutual Savings Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission OCC or any state authority; (vi) no order suspending the ConversionFederal Reserve, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OCC or the Federal Reserve Board in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from RP Financial LC., dated as of the Closing Date:
(i) confirming that said firm is independent of the Mutual Savings Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Mutual Savings Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Mutual Savings Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake, hurricane, or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of the Primary Parties considered as one enterprise, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator OCC approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; Application, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department FHLB-Dallas evidencing the good standing of the Bank; Mutual Savings’ membership therein, (v) a certificate from the FDIC evidencing the Bank’s Mutual Savings’ insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing Date, none of the Mutual Savings Parties will have received from the Federal Reserve, the OCC, or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied which direction, if any, shall have been disclosed to the Agent, only if such information is not considered confidential supervisory information as defined in 12 C.F.R. §309.5(g)(8).
(n) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Offering provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a Mutual Savings Party and delivered to the Agent or to counsel for the delivery of Agent shall be deemed a representation and warranty by such Mutual Savings Party to the Shares on Agent as to the terms and in the manner contemplated in the Registration Statement and the Prospectusstatements made therein.
(o) At or A blue sky memorandum from Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to Magnolia Bancorp with a copy thereof addressed to Agent or upon which Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(p) At the Closing Date, counsel to the Agent shShares shall have been approved for quotation on the OTCQB Market.
Appears in 2 contracts
Sources: Agency Agreement (Magnolia Bancorp, Inc.), Agency Agreement (Magnolia Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Chesapeake Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Chesapeake Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Chesapeake Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and SEC, the Holding Company Application shall have been approved by the Federal Reserve Board FRB and any other applicable regulator, and the amendments to the Bank’s charter shall have been approved by the OCC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Chesapeake Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Chesapeake Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board FRB, the OCC or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Chesapeake Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the Chesapeake Parties delivered pursuant hereto or as such counsel shall reasonably acceptable request and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to the Agentsubsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Chesapeake Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Chesapeake Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Chesapeake Parties independently, or of the Primary Chesapeake Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Chesapeake Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vvi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (vixii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Federal Reserve Board SEC, the FRB, the OCC, the FDIC or any other state or federal or state authority; and (viixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Chesapeake Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Chesapeake Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Chesapeake Party since the latest dates as of which the financial condition of the Chesapeake Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the Primary Chesapeake Parties shall have received from any Governmental Entity the OCC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Chesapeake Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Chesapeake Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Chesapeake Parties, threatened against the any of the Primary Chesapeake Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Chesapeake Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142017 and December 31, June 302016, 2014 and June 30, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132017, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Chesapeake Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) stating that (AB) during the period from the date of the recent developments latest financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt of the Mid-Tier Holding CompanyBank; or (C), other than normal deposit fluctuations for the Mid-Tier Holding Companyexcept as set forth in said letter, or decreases there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, ; or (D) there were was any decreases, as compared with the corresponding period in the preceding fiscal year, decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income before income tax expense or net income or increase in non-interest expense or the provision for loan losses of the Mid-Tier Holding CompanyBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shspecifie
Appears in 2 contracts
Sources: Agency Agreement (CBM Bancorp, Inc.), Agency Agreement (CBM Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as hereunder and the occurrence of the Closing are subject to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition conditions that (i) all representations and warranties and other statements of the Primary PPHI Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing DateTime, true and correct in all material respects, and (ii) the condition that the Primary PPHI Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission Commission, and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge any of the Primary PPHI Parties’ knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to any of the Primary PPHI Parties’ knowledge, threatened by the Department, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body. The Conversion Application shall have been approved by the Department.
(cb) At the Closing DateTime, the Agent shall have received the favorable opinionreceived:
(1) An opinion or opinions, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C., as counsel to Section 8(d) of this Agreementthe PPHI Parties, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent, to the effect that:
(di) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and, to its knowledge, is duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) Prior to the Closing Time PPIX, PCA, and PIPE were unincorporated reciprocal insurance exchanges, and after the Closing Time Positive Insurance Company will be a duly incorporated and validly subsisting Pennsylvania stock insurance company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iii) [Intentionally Omitted].
(iv) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock, $0.01 par value per share, and HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plans against payment of the consideration calculated as set forth in the Plans, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plans and the provisions of the Standby Stock Purchase Agreement.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the PPHI Parties; and this Agreement constitutes a valid and legal obligation of each of the PPHI Parties.
(vi) The Plans have been duly adopted by the attorneys-in-fact of PPIX, PCA and PIPE in the manner required by the Conversion Act.
(vii) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plans, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the PPHI Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viii) The Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(ix) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Prospectus, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof.
(x) At the Closing Datetime that the Registration Statement became effective, the Agent shall have received Registration Statement, including the favorable Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation, as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xii) The information in the Prospectus under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form S-1.
(xiii) None of the PPHI Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiv) To such counsel’s knowledge, none of the PPHI Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the PPHI Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the PPHI Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, dated such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Closing Date and addressed PPHI Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and for its benefitthe federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of ▇▇▇▇▇▇▇▇▇▇ ▇any other state.
(2) A letter of ▇▇▇▇▇▇▇ & ▇▇▇, PC addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, representatives of ▇▇▇▇▇▇▇ LLP& ▇▇▇, special counsel PC participated in conferences with certain officers of and other representatives of the PPHI Parties, representatives of the independent public accounting firm for the AgentPPHI Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇▇▇▇ & ▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of ▇▇▇▇▇▇▇ & ▇▇▇, PC providing services to the PPHI Parties that caused them to believe that (i) the Registration Statement at the time it was ordered effective by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Prospectus, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in form light of the circumstances under which they were made, not misleading (it being understood that counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and substance as reasonably acceptable the Prospectus, and counsel need not express any belief with respect to the Agentfinancial statements, schedules and other financial and statistical data included, statistical or appraisal or valuation methodology employed, or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(e3) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP , PC addressed to the PPHI Parties and the Agent relating to the Offering, including the Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fa) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto, and a letter from ▇▇▇▇▇▇ dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(b) At the Closing DateTime, the Agent shall receive letters from ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ dated the Closing Time, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) above, the “specified date” referred to in clause (iii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than six business days prior to the Closing Time.
(c) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties PPHI Parties, dated as of the Closing Time, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, Agent to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any 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; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary PPHI Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the PPHI Parties independently, or of the Primary PPHI Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (ivv) each of the Primary PPHI Parties have has complied in all material respects with all material agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date, Time including the conditions contained in this Section 810; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vivii) no order suspending the ConversionOffering, the Offering Conversion or the use of the Prospectus has been issued and and, to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Department, the Commission, or any other federal or state authority; and (viiviii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving Director with respect to the ConversionConversion Application.
(gd) None Prior to and at the Closing Time, none of the Primary PPHI Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective Material Adverse Effect that Effect, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(me) At or prior to the Closing DateTime, the Agent Department shall receive: (i) have issued a copy letter or order to PPIX, PCA, and PIPE, which shall have the force of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and Offering, and the Holding Company Application and authorizing Department shall have issued a letter or order to ICG, which shall have the use force of approving the Prospectus; (ii) a copy acquisition of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence control of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestHoldCo by ICG.
(nf) Subsequent to the date hereof, there shall not have occurred any of the following; : (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority other than temporary trading haltshalts (A) imposed as a result of intraday changes in the Dow ▇▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks, federally-insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks federally-insured financial institutions declared by either federal or state authorities; or (iii) the engagement by the United States in any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline any of (i) through (iii) herein, in the judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering or the delivery sale of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shShares. All such opinions,
Appears in 2 contracts
Sources: Agency Agreement (Positive Physicians Holdings,inc.), Agency Agreement (Positive Physicians Holdings,inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary SBI Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary SBI Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary SBI Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Charter Conversion imposed upon them by the Federal Reserve Board Reserve, the OCC and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on and the date of this AgreementCharter Conversion Application shall have been approved by the OCC and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary SBI Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the SBI Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received received:
(1) The opinion, dated as of the favorable opinionClosing Date, of ▇▇▇▇ ▇▇▇▇▇▇, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of ▇▇▇▇▇▇▇, the Company’s consolidated financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Audit Standard No. 4105) of the latest available unaudited consolidated interim financial statements prepared by the Company, a reading of the minutes of the meetings of the Boards of Directors of the SBI Parties and committees thereof and consultations with officers of the SBI Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Company and its subsidiaries, which are subject to the internal controls of the accounting system of the Company and its subsidiaries and other data prepared by the Company and its subsidiaries from their accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇, dated as of the Closing Date and addressed to the Agent and for Agent, confirming the statements made by its benefitletter delivered pursuant to subsection (d) of this Section 11, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties“specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant not be more than three business days prior to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.the Closing Date.
(df) At the Closing Date, counsel to the Agent shall have received the favorable opinion, dated been furnished with such documents as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as Agent may reasonably acceptable require for the purpose of enabling them to advise the Agent with respect to the Agentissuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselSBI Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary SBI Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by SBI, or the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the OCC or any other federal or state governmental authority; and ;
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing or to enjoin the use of the ProspectusConversion; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shand
Appears in 2 contracts
Sources: Agency Agreement (Seneca Bancorp, Inc.), Agency Agreement (Seneca Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary PyraMax Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary PyraMax Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary PyraMax Parties shall have conducted the Conversion Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the Conversion MHC Regulations, the Control Act Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board Reserve, the OCC, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Reserve, the OCC and the FDIC, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary PyraMax Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the PyraMax Parties’ knowledge, threatened by the Federal Reserve, the Commission, the Federal Reserve Board OCC or the FDIC or any other federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the PyraMax Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the PyraMax Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ LLP may rely dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇ LLP, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder, the Federal Reserve, the OCC and the FDIC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the PyraMax Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such opinion unaudited financial statements included in rendering the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion pursuant included in the Prospectus and the performance of the procedures referred to Section 8(din clause (ii) of this Agreementsubsection (d), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the PyraMax Parties from accounting records, to the extent specified in form such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and substance as attached hereto as Exhibit C.they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating dated the Closing Date, addressed to the OfferingAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselPyraMax Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary PyraMax Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the OCC, the FDIC or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Reserve, the FDIC or any other applicable regulator the OCC in approving the ConversionApplications or to enjoin the Reorganization.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the PyraMax Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the PyraMax Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary PyraMax Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary PyraMax Parties considered independently, or the PyraMax Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and MHC Notice, including the establishment of the Foundation; (ii) a copy of the letter from the Federal Reserve approving the Holding Company Application and authorizing the use Application; (iii) a copy of the Prospectus; letter from the OCC approving the OCC Applications, (iiiv) a copy of the letter from the FDIC approving the FDIC Application, (v) a copy of the order from the Commission that declared declaring the Registration Statement effective, if available; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (viiviii) a certificate from the Maryland State Department certified copy of Assessments and Taxation evidencing the good standing each of the Holding Company’s, the Bank’s and the MHC’s Charter and Bylaws, as applicable; and (viiiix) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the PyraMax Parties will have received from the Federal Reserve, the OCC, or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Closing Date, counsel provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any PyraMax Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such PyraMax Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (1895 Bancorp of Wisconsin, Inc.), Agency Agreement (1895 Bancorp of Wisconsin, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, and the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Board, the date New York Application shall have been approved by the New York State Department of this Agreement, or with the Agent’s consent at a later time Financial Services and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve Board, the Federal Reserve Board New York State Department of Financial Services, the Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C. and/or local counsel acceptable to Section 8(d) of this Agreementthe Agent, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit C.E. The opinion may be limited to matters governed by the laws of the United States and the States of New York and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States and the State of Maryland, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(d2) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, P.C. in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from effect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness, or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules, and other financial and statistical data included or omitted from, or statistical or appraisal methodology employed in, the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ Procter LLP, counsel for KBW, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇▇▇ Procter LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇ Procter LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties, and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(4)), ▇▇▇▇▇▇▇ Procter LLP has not independently verified the accuracy, completeness, or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ Procter LLP that caused ▇▇▇▇▇▇▇ Procter LLP to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules, and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) As of the date hereof, the Agent shall receive a letter from ▇▇▇▇▇▇▇ & Co., LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ & Co., LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations, and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇ & Co., LLP’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act, and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee, and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and the “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans or non-performing assets, or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the March 31, 2014 statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and the General Disclosure Package as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ & Co., LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties, or business or prospects affairs of the Primary Parties independentlyParties, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, Date including the conditions contained in this Section 810; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge best of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vi) no order suspending the Offering, the Exchange, the Conversion, the Offering acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion, or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Board, the Commission, or any other federal or state authority; and (vii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator in approving the Plan or to enjoin the Conversion; and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None At the Closing Date, the Agent shall receive a letter from RP Financial, LC, dated as of the Closing Date: (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals; (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations; and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order order, or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity, or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketearnings, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shcap
Appears in 2 contracts
Sources: Agency Agreement (Pathfinder Bancorp Inc), Agency Agreement (Pathfinder Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary OBA Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary OBA Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary OBA Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary OBA Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary OBA Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary OBA Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the OBA Parties independently, or of the Primary OBA Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary OBA Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary OBA Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary OBA Parties, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the best knowledge of the Primary OBA Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary OBA Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary OBA Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary OBA Parties shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the OBA Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary OBA Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary OBA Parties, threatened against the any of the Primary OBA Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingOBA Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary OBA Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company MHC as of December 31, 2014, June 30, 2014 2009 and June 302008, 2013 and the six months ended December 31, 2014 and for each of the years in the three-year period ended June 30, 2014 and 20132009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the OBA Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt borrowings of the Mid-Tier Holding CompanyMHC, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity net assets of the Mid-Tier Holding Company and (B) during the period from MHC at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding CompanyMHC, the accounting system and other data prepared by the Mid-Tier Holding CompanyMHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary OBA Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board OTS evidencing the valid existence of the Bank, the MHC and the Mid-Tier Holding CompanyOBA Bancorp; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Atlanta evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the OBA Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the OBA Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such OBA Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (OBA Financial Services, Inc.), Agency Agreement (OBA Financial Services, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all of the respective representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects (except for those representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects), the condition that each of the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Merger Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived in writing or otherwise approved by the Federal Reserve Board and any other applicable regulatorOCC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Merger Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOCC to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by Prior to the Commission and Closing Date, the Conversion Application and the Holding Company Application Plan shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Members of Elberton in accordance with the Plan, the Conversion Regulations, the applicable provisions of Elberton’s charter and bylaws and the Proxy Statement.
(c) The Applications shall have been approved by the FDIC, the GDBF, the OCC and the FRB, as applicable, as of the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness approval of the Registration Statement Applications shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission FDIC, the GDBF, the OCC or the FRB, or any state authority, and no order or other action suspending the authorization of the Prospectus Offering Circular or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the CommissionFDIC, the Federal Reserve Board or GDBF, the SEC, the FRB, the OCC, any other federal state authority or state authorityGovernmental Authority.
(cd) At the Closing Date, the The Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇▇ & Bird in form and substance reasonably satisfactory to the Agent and counsel for the Agent, in the form attached hereto as Exhibit B. The opinion may be limited to matters governed by the laws of the United States and the States of Georgia and New York. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States and Georgia, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Oconee Parties and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by counsel to the Oconee Parties. The opinion of such counsel for the Oconee Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Oconee Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(e) The Agent shall have received the letter of ▇▇▇▇▇▇ LLP& Bird, special counsel for in form and substance reasonably satisfactory to the Primary PartiesAgent and Agent’s counsel, which shall also state to the effect that ▇▇▇▇▇▇▇▇▇▇ ▇▇during the preparation of the Offering Statement and the Offering Circular, ▇▇▇▇▇▇ & ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Oconee Parties and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(d) of this Agreement), ▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement& Bird has not independently verified the accuracy, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as completeness or fairness of the Closing Date statements contained in the Offering Statement and addressed Offering Circular, on the basis of the foregoing, nothing has come to the Agent and for its benefit, attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇& Bird that caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPto believe that the Offering Statement at the time it was declared qualified by the SEC and as of the date of such letter contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, special counsel for the Agentnotes to financial statements, schedules and other financial and statistical data included in or omitted from, or statistical or appraisal methodology employed, in form and substance as reasonably acceptable to the AgentOffering Statement or Offering Circular).
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP & Bird relating to the Offering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the Prospectus, to the Holding Company Offering Circular with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP & Bird shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawlaws.
(fg) The Agent shall have received the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, counsel for Elberton, in form and substance satisfactory to the Agent and counsel for the Agent, in the form of Exhibit C. The opinion may be limited to matters governed by the laws of the United States and the State of Georgia. In rendering such opinion, such counsel may rely (a) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (b) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of Elberton and public officials; provided that copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by counsel to Elberton. The opinion of such counsel for Elberton shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for Elberton also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(h) The Agent shall have received the letter of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, in form and substance satisfactory to the Agent and the Agent’s counsel, to the effect that during the preparation of the Offering Statement and the Offering Circular, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Oconee Parties and the Agent, representatives of the independent public accountants for Elberton and representatives of the Agent at which the contents of the Offering Statement and the Offering Circular related to Elberton were discussed and has considered the matters related to Elberton required to be stated therein and such statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(g)), ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Offering Statement and Offering Circular, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ that caused ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ to believe that the Offering Statement at the time it was declared qualified by the SEC and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements thereinunder the headings: “Summary – Our Acquisition of Elberton Federal Savings &Loan Association,” “Summary – This Offering,” “Terms of the Offering’” and “Description of the Merger Conversion and Related Agreements” in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Offering Statement, or Offering Circular).
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus Offering Statement and Offering Circular and, in their opinion, at the time the Prospectus Offering Circular became authorized for final use, the Prospectus Offering Statement and Offering Circular did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the ProspectusQualification Date, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus Offering Statement and Offering Circular that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Oconee Parties independentlyand the conditions set forth in this Section 10 have been satisfied; (iii) since the respective dates as of which information is given in the Offering Circular, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties considered as one enterpriseBank, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Oconee Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Merger Conversion, the Offering or the use of the Prospectus Offering Circular has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board FDIC, the GDBF, the SEC, the OCC, or any other federal Governmental Authority.
(j) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of Elberton in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Offering Statement and Offering Circular and, in their opinion, at the time the Offering Circular became authorized for final use, the Offering Statement and Offering Circular did not contain any untrue statement of a material fact or omit to state authoritya material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such certification pursuant to this clause (i) shall not apply to information related to the Oconee Parties or which was provided by the Oconee Parties for inclusion in the Offering Circular or to statements or omissions in reliance upon and in conformity with written information furnished to Elberton or the Company by the Agent or its counsel expressly regarding the Agent for use in the Offering Circular; (viiii) since the Qualification Date, no event related to Elberton has occurred that should have been set forth in an amendment or supplement to the Offering Statement and Offering Circular that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of Elberton; (iii) since the Qualification Date, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of Elberton; (iv) the representations and warranties in Section 5 are true and correct with the same force and effect as though expressly made at and as of the Closing Date (except to the extent made as of an earlier date); (v) Elberton has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by it after the Closing Date; (vi) no order suspending the Merger Conversion has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesElberton, no person has sought to obtain regulatory or judicial review of threatened by the final action of FDIC, the Federal Reserve Board GDBF, the OCC, or any other applicable regulator approving the ConversionGovernmental Authority.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent (i) there shall have been no material adverse change in the financial condition, results of operations or business of the any Primary Parties considered as one enterprise, from and as of Party since the latest date dates as of which such condition is set forth in the ProspectusOffering Circular, other than transactions referred to or contemplated therein; (ii) none of the no Primary Parties Party shall have received from any Governmental Entity the FDIC, the GDBF, the FRB or the OCC any direction (oral or written) to make any material change in the method of conducting their its business with which it has not complied in all material respects (which direction, if any, subject to Section 23, shall have been disclosed to the Agent) and which or that would be reasonably be expected likely to have a Material Adverse EffectEffect on the Oconee Parties, taken as a whole, or on Elberton, as applicable; (iii) none of the Primary Parties shall not have been in default (nor shall an event have occurred whichthat, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board board, other administrative agency or other administrative agencyGovernmental Authority, not disclosed in the ProspectusOffering Circular, shall be pending or, to the knowledge of any of the Primary Parties, threatened against any of the Primary Parties Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringsuch Primary Party; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(il) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion on the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 20142022 and 2021, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations consolidated statements of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shcomprehe
Appears in 2 contracts
Sources: Agency Agreement (Oconee Financial Corp), Agency Agreement (Oconee Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Home Federal Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Home Federal Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Home Federal Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board OCC and any other applicable regulatorthe FRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOCC and the FRB to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and SEC, the Conversion Application shall have been approved by the OCC, and the Holding Company Application shall have been approved by the Federal Reserve Board FRB not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Home Federal Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board OCC, the FRB or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Holding Company and the Bank, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇J▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the Home Federal Parties delivered pursuant hereto or as such counsel shall reasonably acceptable to request and the Agent.
(e) A blue sky memorandum from ▇▇opinion of L▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to subsection (c) above.
(e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Home Federal Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement and, Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Home Federal Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Home Federal Parties independently, or of the Primary Home Federal Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Home Federal Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Home Federal Parties, threatened by the Commission SEC or any state or federal authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Home Federal Parties, threatened by the Federal Reserve Board SEC, the OCC, the FRB or any other state or federal or state authority; and (viiviii) to the knowledge of the Primary Home Federal Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OCC approving the ConversionPlan or of the FRB approving the Holding Company Application.
(g) None of the Primary Home Federal Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Home Federal Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Home Federal Party since the latest dates as of which the financial condition of the Home Federal Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary Home Federal Parties shall have received from any Governmental Entity the OCC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Home Federal Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Home Federal Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Home Federal Parties, threatened against the any of the Primary Home Federal Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Home Federal Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, BKD LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, BKD LLP is a firm of independent registered public accountants within the applicable rules of the SEC and the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June 30, 2014 and June 302015, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132015, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Home Federal Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) stating that (AB) during the period from the date of the recent developments latest financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyFHLB borrowings, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan lossestotal deposits, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus; or (D) there was any decrease in net income (loss) or net interest income, non-interest income or increase in non-interest expense of the Bank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus to a specified date not more than three business days and ended on the latest month end prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, Prospectus as compared with to the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, BKD LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP FinancialK▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Home Federal Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator OCC approving the Conversion Application and the Holding Company Application Application, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iii) a copy of the order from the Commission that declared SEC declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (viivi) a certificate from the Maryland State Department certified copy of Assessments and Taxation evidencing the good standing each of the Holding Company’s and the Bank’s Articles of Incorporation, Charter and Bylaws, as applicable; and (viiivii) such any other documents and certificates as the that Agent may shall reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or quotations halted generally on the Nasdaq Stock Market or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges the NYSE or the Nasdaq Stock Market or in the over-the-counter market or by order of the Commission SEC, FINRA or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material savings and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shloan associations
Appears in 2 contracts
Sources: Agency Agreement (Best Hometown Bancorp, Inc.), Agency Agreement (Best Hometown Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary ▇▇▇▇▇ Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary ▇▇▇▇▇ Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary ▇▇▇▇▇ Parties shall have conducted the Conversion Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board FRB, the OCC or the FDIC or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and SEC, the Conversion Application MHC Notice and the Holding Company Application shall have been approved by the Federal Reserve Board FRB, the OCC Applications shall have been approved by the OCC and the FDIC Application shall have been approved by the FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary ▇▇▇▇▇ Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board FRB, the OCC or the FDIC or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Foundation Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Members’ Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ Lord LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementParties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the ▇▇▇▇▇ Parties delivered pursuant hereto or as such counsel shall reasonably acceptable request and the opinion of ▇▇▇▇▇ Lord LLP delivered pursuant to the Agentsubsection (c) above.
(e) A Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ Lord LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ Lord LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary ▇▇▇▇▇ Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary ▇▇▇▇▇ Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the ▇▇▇▇▇ Parties independently, or of the Primary ▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary ▇▇▇▇▇ Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vvi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to Mazars USA LLP and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Commission SEC or any state or federal authority; (vixii) no order suspending the ConversionReorganization, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Federal Reserve Board SEC, the FRB, the OCC, the FDIC or any other state or federal or state authority; and (viixiii) to the knowledge of the Primary ▇▇▇▇▇ Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator FRB approving the ConversionMHC Notice, including the Plan included therein, or the Holding Company Application; (xiv) no order suspending the FRB’s approval of the Holding Company Application and the MHC Notice, the OCC’s approval of the OCC Applications and the FDIC’s approval of the FDIC Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by the FRB, the OCC or the FDIC and (xv) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary ▇▇▇▇▇ Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary ▇▇▇▇▇ Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any ▇▇▇▇▇ Party since the latest dates as of which the financial condition of the ▇▇▇▇▇ Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary ▇▇▇▇▇ Parties shall have received from any Governmental Entity the OCC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the ▇▇▇▇▇ Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary ▇▇▇▇▇ Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened against the any of the Primary ▇▇▇▇▇ Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary ▇▇▇▇▇ Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, Mazars USA LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, Mazars USA LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142016 and 2015, June 30, 2014 and June 30, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132016, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the ▇▇▇▇▇ Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and the 1934 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) stating that (AB) during the period from the date of the recent developments latest financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term or short-term debt or non-performing assets of the Mid-Tier Holding CompanyBank; or (C), other than normal deposit fluctuations for the Mid-Tier Holding Companyexcept as set forth in said letter, or decreases there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, ; or (D) there were was any decreases, as compared with the corresponding period in the preceding fiscal year, decrease in total interest income, net interest income, net interest income after provision for loan losses, non-interest income before income tax expense or net income or increase in non-interest expense or the provision for loan losses of the Mid-Tier Holding CompanyBank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, Mazars USA LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shlette
Appears in 2 contracts
Sources: Agency Agreement (PDL Community Bancorp), Agency Agreement (PDL Community Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Greenville Federal Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct correct, the condition that the Greenville Federal Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Greenville Federal Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board OTS and the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission SEC, the MHC Notice and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time OTS and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Greenville Federal Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been therefor initiated or, to the knowledge of the Primary Greenville Federal Parties, threatened by the Commission or any state authority; (vi) no order suspending the ConversionOTS, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the body. The Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Greenville Federal Financial Corporation.
(c) At the Primary Parties.Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of VSSP, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect that:
(i) Concurrently Greenville Federal Financial Corporation is a corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Bank is a validly existing federally chartered mutual savings and loan association, and upon consummation of the Reorganization, the Bank will become a validly existing federally chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the OTS (or valid waivers granted it by the OTS from such rules and regulations); all of the capital stock of the Bank to be outstanding upon completion of the Reorganization will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by Greenville Federal Financial Corporation, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member in good standing of the Federal Home Loan Bank of Cincinnati. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(iv) Greenville Federal MHC has been duly organized and is validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization and the issuance of the Shares immediately upon completion of the Reorganization, under the terms of the approval order of the OTS, in an amount as described in the Prospectus, (a) the authorized, issued and outstanding capital stock of Greenville Federal Financial Corporation will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of Greenville Federal Financial Corporation); (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by Greenville Federal Financial Corporation pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter or bylaws of Greenville Federal Financial Corporation, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from Greenville Federal Financial Corporation to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Greenville Federal Parties have full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Greenville Federal Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Greenville Federal Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally or the rights of creditors of savings associations or financial institutions, the accounts of which are insured by the FDIC, or their holding companies, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) Pursuant to the MHC Regulations, the Plan has been duly approved by the required vote of the Bank's members, based upon the certificate of the inspector of election, and duly adopted by the required vote of the directors of Greenville Federal Financial Corporation and the Bank.
(viii) The Plan complies in all material respects with the MHC Regulations; the MHC Notice and the Holding Company Application have been approved by the OTS, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, Commission or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the Agent shall receive a letter from BDO USAoffer, LLP, dated as sale and issuance of the date hereof Shares and addressed the consummation of the Reorganization, except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the MHC Notice, the Prospectus or the Holding Company Application.
(ix) The Registration Statement has become effective under the 1933 Act, and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted by the Commission and to such counsel's Actual Knowledge, no such proceedings have been threatened by the Commission.
(x) The terms and provisions of the Shares conform in all material respects to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within description thereof contained in the applicable rules of the Public Company Accounting Oversight Board (United States) Registration Statement and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply and the forms of certificates proposed to be used to evidence the Shares are in due and proper form in compliance with applicable laws.
(xi) At the time the MHC Notice, including the Prospectus and Members' Proxy Statement contained therein, was approved by the OTS, the MHC Notice, including the Prospectus and Members' Proxy Statement contained therein, as amended or supplemented, complied as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC MHC Regulations (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the 1933 Act; (ii) stating that (A) during appraisal valuation and the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreasesplan, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to roundingcounsel need express no opinion).
(jxii) At the time that the Registration Statement became effective and as of the Closing Date, the Agent shall receive a letter dated the Closing DateRegistration Statement, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in including the Prospectus was derived(as amended or supplemented) (other than the financial statements, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for notes to financial statements, financial tables or other financial and accounting mattersstatistical data included therein and the appraisal valuation and the business plan, nothing came as to their attention which caused them counsel need express no opinion), complied as to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies form in all material respects with the applicable requirements of the Conversion Regulations1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's Actual Knowledge, and there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver which are required to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated disclosed in the Registration Statement and the Prospectus, other than those disclosed therein.
(oxiv) At or prior The information in the Prospectus under the captions "Summary -- The reorganization and the stock offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Plans Regarding Dividends," "Management," "Supervision and Regulation," "Taxation," "Our Reorganization and Stock Offering," "Restrictions on Acquisition of Greenville Federal Financial Corporation and Greenville Federal" and "Description of Capital Stock of Greenville Federal Financial Corporation," to the Closing Dateextent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to the Agent shbe shown.
Appears in 2 contracts
Sources: Agency Agreement (Greenville Federal Financial CORP), Agency Agreement (Greenville Federal Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the IDFI Regulations, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Board, the IDFI, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on and the IDFI, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the Federal Reserve Board, the Commission, the Federal Reserve Board IDFI or the FDIC or any other federal regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent's counsel may rely for purposes of delivering its legal opinion (if any), of Silver, F▇▇▇▇▇▇▇, T▇▇▇ & T▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the proxy statement for the special meeting of the Voting Member of the MHC (the “Proxy Statement”) and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of BKD, LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve Board; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Mid-Tier Holding Company and the Bank and committees thereof and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Mid-Tier Holding Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company and other data prepared by the Mid-Tier Holding Company from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall have received the favorable opinionreceive a letter from BKD, LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in form and substance as reasonably acceptable clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the AgentClosing Date.
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating At or prior to Closing Date, counsel to the Offering, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawand the contribution of the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Board, the Commission, the IDFI, the FDIC or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Board, the FDIC or any other applicable regulator the IDFI in approving the Applications or to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with requirements of the Federal Reserve Board, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties considered independently, or the Primary Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing including the use establishment of the ProspectusFoundation; (ii) a copy of the letter from the IDFI approving the IDFI Application; (iii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York FHLBs evidencing the Bank’s membership memberships therein; (vi) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing certified copy of the Holding CompanyFoundations’ Charter and Bylaws; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve Board, the IDFI, or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Closing Date, counsel provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Richmond Mutual Bancorporation, Inc.), Agency Agreement (Richmond Mutual Bancorporation, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Lake Shore Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Lake Shore Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Lake Shore Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Charter Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulatorregulatory body to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and SEC, the Holding Company Application shall have been approved by the Federal Reserve Board FRB and any other applicable regulator, and the Charter Conversion Application shall have been approved by the NYSDFS and the FDIC, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Lake Shore Parties, threatened by the Commission SEC or any state regulatory authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion or the Charter Conversion shall have been issued or proceedings therefore initiated or, to the Primary Lake Shore Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board FRB, the NYSDFS, the FDIC or any other federal regulatory authority, except in such states in which the registration of the Offering or the Shares or the Exchange Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state authoritycourt of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares or the Exchange Shares. The Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, the Members’ Proxy Statement and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion pursuant to Section 8(d), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Lake Shore Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form with respect to such matters as the Agent may reasonably require. Such opinion may rely upon certificates of officers and substance directors of the Lake Shore Parties delivered pursuant hereto or as such counsel shall reasonably acceptable to request and the Agent.
(e) A blue sky memorandum from ▇opinion of ▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to subsection (c) above.
(e) Prior to the mailing of the Prospectus to eligible subscribers, a blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares and the Exchange Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer President and the Chief Financial Officer of each of the Primary Parties Lake Shore Parties, solely in their capacities as such and without personal liability therefor, in form and substance reasonably satisfactory to the Agent’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement, the Prospectus and the General Disclosure Package and, in their opinion, as of the effective date of the Registration Statement, and at the time the Prospectus became authorized for final use, the Registration Statement, the Prospectus and the General Disclosure Package did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Lake Shore Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the General Disclosure Package, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Lake Shore Parties independently, or of the Primary Lake Shore Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Lake Shore Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained set forth in this Section 8, and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vvi) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (vii) they are responsible for establishing and maintaining disclosure controls and procedures; (viii) they have designed such disclosure controls and procedures to ensure that material information relating to the Holding Company and the Bank is made known to them; (ix) they have evaluated the effectiveness of their disclosure controls and procedures; (x) they have disclosed to ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, P.C. and the Audit Committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Holding Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Holding Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Holding Company’s and the Bank’s disclosure controls and procedures; (xi) the Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission SEC or any state or federal authority; (vixii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Partiestheir knowledge, threatened by the Federal Reserve Board SEC, the FRB, the OCC, the FDIC or any other state or federal or state authority; and (viixiii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB approving the Conversion Application, including the Plan included therein; (xiv) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or any other applicable regulator approving regulatory agency; and (xv) no order suspending the ConversionSubscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(g) None of the Primary Lake Shore Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Lake Shore Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) there shall have been no material transaction entered into by any Lake Shore Party since the latest dates as of which the financial condition of the Lake Shore Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein or in the ordinary course of business; (iii) none of the Primary Lake Shore Parties shall have received from any Governmental Entity the OCC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which directiondirection (if permitted to be disclosed), if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Lake Shore Parties taken as a Material Adverse Effectwhole; (iiiiv) none of the Primary Lake Shore Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Lake Shore Parties, threatened against the any of the Primary Lake Shore Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares and the Exchange Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Lake Shore Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA▇▇▇▇▇, LLP▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA▇▇▇▇▇, LLP ▇▇▇▇ & ▇▇▇▇▇▇▇, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) SEC and the PCAOB and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 20142024, June 30, 2014 and June 30, 2013 and for the six months year ended December 31, 2014 and the years ended June 30, 2014 and 20132024, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB) consisting of a reading of the latest available financial statements of the Mid-Tier Company prepared by the Mid-Tier Company, a reading of the minutes of the meetings of the Boards of Directors of each of the Lake Shore Parties and consultations with officers of the Mid-Tier Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and related published rules and regulations of the SEC and accounting principles generally accepted in the 1933 ActUnited States of America applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (ii) stating that (AB) during the period from the date of the recent developments latest financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in consolidated long-term or short-term debt of the Mid-Tier Holding Company; or (C), other than normal deposit fluctuations for the Mid-Tier Holding Companyexcept as set forth in said letter, or decreases there was any decrease in the consolidated total assets, total loans, the allowance for loan credit losses, total deposits deposits, or total equity capital accounts of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described ; or (D) there was any decrease in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in consolidated total interest income, net interest income, net interest income after provision for loan credit losses, non-interest income before income tax expense or net income or increase in non-interest expense or the provision for credit losses of the Mid-Tier Holding Company, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyCompany and the Bank, which are subject to the internal controls of the Mid-Tier Holding CompanyCompany and the Bank, the accounting system and other data prepared by the Mid-Tier Holding CompanyCompany and the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shreas
Appears in 2 contracts
Sources: Agency Agreement (Lake Shore Bancorp, Inc.), Agency Agreement (Lake Shore Bancorp, Inc. /MD/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Eagle Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Eagle Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Eagle Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Division, the FDIC, the FRB and the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Division, the date of this AgreementFDIC and FRB, or with the Agent’s consent at a later time and date; and as applicable, and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Eagle Parties, threatened by the Commission SEC or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Eagle Parties’ knowledge, threatened by the CommissionDivision, the Federal Reserve Board FDIC, the FRB, the SEC, or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of ▇▇▇▇▇▇▇a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP PC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP shall state ▇, PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from each of BKD, LLP and M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from each of BKD, LLP and M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (e) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselEagle Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary Eagle Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the SEC or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vi) no order suspending the ConversionDivision, the Offering or FDIC, the use of FRB, the Prospectus has been issued and no proceedings for that purpose are pending orSEC, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Division or any other applicable regulator the FDIC in approving the Plan or to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the Eagle Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Eagle Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary Eagle Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Eagle Parties considered independently, or the Eagle Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the Conversion Application and a copy of the letters from the Federal Reserve Board Division and any other applicable regulator the FDIC approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; Application, (ii) a copy of the order from the Commission that declared SEC declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing FRB approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department FHLB-Cincinnati evidencing the good standing of the Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , and (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock MarketMarket (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission SEC or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing date, none of the Eagle Parties will have received from the FRB, the Division or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior FINRA shall have confirmed that it has not raised any objection with respect to the Closing Datefairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(p) All such opinions, counsel certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Eagle Financial Bancorp, Inc.), Agency Agreement (Eagle Financial Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application, Holding Company Application and the Holding Company Merger Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementOTS, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLPLLP and/or local counsel acceptable to the Agent, special in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Montana and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of Seattle. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Members in the manner required by the Conversion Regulations and the certificate of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application, the Holding Company Application and the Merger Application have been approved by the OTS and the Prospectus, the Voting Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which shall also state no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that ▇▇▇▇▇▇▇▇▇▇ ▇purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and Gough, Shanahan, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed PLLP to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable Primary Parties with respect to the Agentsuch matters.
(exv) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating The terms and provisions of the shares of Common Stock conform to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy description thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given contained in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth form of certificate to be used to evidence the shares of Common Stock is in this Section 8 have been satisfied; due and proper form.
(iiixvi) At the representations and warranties in Section 4 are true and correct with time the same force and effect as though expressly made at Applications were approved and as of the Closing Date; , the Applications (ivas amended or supplemented), the Prospectus (as amended or supplemented), the Voting Members’ Proxy Statement (as amended or supplemented) and the Primary Parties have Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness requirements of the Registration Statement has been initiated orConversion Regulations and all applicable laws, to the knowledge rules and regulations and decisions and orders of the Primary PartiesOTS, threatened by except as modified or waived in writing (other than the Commission or any state authority; (vi) financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiesopinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS in approving the ConversionApplications.
(gxvii) None At the time that the Registration Statement became effective and as of the Primary Parties shall have sustainedClosing Date, since the date of the latest financial statements included in the Registration Statement, including the General Disclosure Package and ProspectusProspectus (as amended or supplemented) (other than the financial statements, any material loss or interference with its business from firenotes to financial statements, explosion, flood financial tables or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement financial and statistical data included therein and the Prospectus, and since the respective dates as of which information is given in the Registration Statement appraisal valuation and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse business plan as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC 1933 Act and the 1933 Act; Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) stating seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Eagle Bancorp” “Restrictions on Acquisition of Eagle Bancorp Montana, Inc.,” “Description of Capital Stock of Eagle Bancorp Montana, Inc. Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of Delaware and Montana. In rendering such opinion, such counsel may rely (A) during as to matters involving the period from application of laws of any jurisdiction other than the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior United States, to the date extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the ProspectusAgent, except as has been described in long as such other opinion indicates that the ProspectusAgent may rely on the opinion, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date as to matters of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting recordsfact, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect thatcounsel deems proper, on the basis certificates of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each responsible officers of the Primary Parties and consultations public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with officers the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them Primary Parties shall state that it has no reason to believe that: (Athat the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectusreliance.
(k2) At The letter of ▇▇▇▇▇ Peabody LLP in form and substance to the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that during the Appraisal prepared by such firm complies in all material respects with the applicable requirements preparation of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to , ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Closing DatePrimary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent shat which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ Peabody LLP that caused ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Pack
Appears in 2 contracts
Sources: Agency Agreement (Eagle Bancorp Montana, Inc.), Agency Agreement (Eagle Bancorp Montana, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Association, the Company and the MHC herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Association, the Company and the MHC shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Association, the Company and the MHC shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion Reorganization Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board OTS, the SEC or any other applicable regulatorGovernmental Authority.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been Reorganization Applications approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization or the Offering shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Association’s, the Company’s and the MHC’s knowledge, threatened by the CommissionOTS, the Federal Reserve Board SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(i) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Association, the Company and the MHC, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they :
1. The Company and the MHC have carefully examined been duly incorporated and are validly existing in good standing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were madeUnited States.
2. The Company and the MHC have the corporate power and authority to own, not misleading; (ii) since the respective dates lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus.
3. The Association is duly incorporated and is a validly existing federally-chartered stock savings association, duly authorized and with corporate power to conduct its business and own its property as described in the Registration Statement, the General Disclosure Package and the Prospectus. The activities of the Association, the Company and the MHC prior to or following the Reorganization as described in the Registration Statement, General Disclosure Package and the Prospectus are permitted by the rules, regulations and practices of the OTS. When issued in accordance with the Plan, all of the capital stock of the Association to be outstanding upon completion of the Reorganization will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel’s knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
4. The Association is a member in good standing of the FHLB-Atlanta. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s knowledge, no event has occurred that should have been proceedings for the termination or revocation of such insurance are pending or threatened.
5. Immediately following the consummation of the Offering, the issued and outstanding Common Stock of the Company will be within the range set forth in an amendment or supplement to the General Disclosure Package and the Prospectus that under the caption “Capitalization,” no Common Stock has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights (except for subscription rights as set forth in the Plan), and the terms and provisions of the Common Stock conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. The Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Association.
6. The Association, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Association, the Company and the MHC and this Agreement is a valid and binding obligation of the Association, the Company and the MHC, enforceable against the Association, the Company and the MHC in accordance with its terms, except as the Association enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or rights of creditors of federally chartered savings institutions or savings and loan holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the Primary Parties indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
7. All corporate acts and other proceedings required to be taken by or on the part of the Association, the Company and the MHC to adopt and approve the Plan and to consummate the transactions contemplated by the Plan and this Agreement, have been properly taken, including approval by the Association’s members and duly adopted by the required vote of the directors of the Association, the Company and the MHC.
8. The Reorganization Applications have been approved by OTS, and the Prospectus and Members’ Proxy Statement have been authorized for use by the OTS, and no action has been taken and none is pending, or to such counsel’s knowledge, is threatened to revoke any such authorization or approval.
9. Subject to the satisfaction of the conditions to the OTS’ approval of the Reorganization, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, administration or other governmental board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the Foundation Shares and the consummation of the Reorganization, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the FINRA and/or The Nasdaq Capital Market (as to which no opinion need be rendered).
10. The Registration Statement is effective under the 1933 Act; and, to counsel’s knowledge, any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433; no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s knowledge, threatened by the SEC.
11. At the time the Reorganization Applications, including the Plan, the Prospectus and Members’ Proxy Statement contained therein, were approved by the OTS, the Reorganization Applications, including the Plan, the Prospectus and Members’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations, the 1934 Act Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
12. At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the Reorganization Regulations.
13. The terms and provisions of the Common Stock of the Company conform, in all material respects, to the description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, and the form of certificate used to evidence the Common Stock complies with applicable federal laws.
14. To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, (iii) seeking to prevent the issuance of the Foundation Shares, or (iv) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
15. None of the Association, the Company or the MHC are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
16. To such counsel’s knowledge, none of the Association, the Company or the MHC is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
17. To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Reorganization Applications, the Registration Statement, the General Disclosure Package or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Reorganization Applications, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the Reorganization Applications, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
18. The Plan complies in all material respects with all material agreements applicable laws, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Reorganization Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the Reorganization Applications, the Holding Company Application or the Prospectus.
19. To such counsel’s knowledge, none of the Association, the Company or the MHC is in violation of its charter and bylaws, or in default or violation of any agreement or instrument filed as an exhibit to the Registration Statement; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (ga) None to such counsel’s knowledge, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Association, the Company or the MHC pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Association, the Company or the MHC is a party that is filed as an exhibit to the Registration Statement, (b) result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Association, or (c) result in any material violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the FINRA and/or The Nasdaq Capital Market need be rendered) or order or court order, writ, injunction or decree.
20. The Association’s, the Company’s and the MHC’s Charter and Bylaws each comply in all material respects with the laws of the United States, including the rules and regulations of the OTS except as may have been waived by the OTS.
21. The information in the Prospectus under the captions “Our Policy Regarding Dividends,” “Supervision and Regulation,” “Federal, State and Local Taxation,” “The Reorganization and the Offering,” “Restrictions on the Acquisition of Oconee Federal Financial Corp. and Oconee Federal Savings and Loan Association,” “Oconee Federal Charitable Foundation” and “Description of Capital Stock of Oconee Federal Financial Corp.” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Reorganization process in the Prospectus under the caption “The Reorganization and the Offering” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present in all material respects the information required to be shown. The information under the caption “The Reorganization and the Offering – Tax Effects of the Reorganization” and “Oconee Federal Charitable Foundation – Tax Considerations” has been reviewed by such counsel and by Cherry Bakaert & Holland, L.L.P. and fairly describes the opinions rendered by such counsel and by Cherry Bakaert & Holland, L.L.P. to the Association, the Company and the MHC with respect to such matters. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Primary Parties and certificates of public officials. Such counsel’s opinion shall have sustainedbe limited to matters governed by federal laws. For purposes of such opinion, since the date of the latest financial statements included in the Registration Statementno proceedings shall be deemed to be pending, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, no order or decree, otherwise than as set forth in the Registration Statement and the Prospectusstop order shall be deemed to be issued, and since the respective dates as no action shall be deemed to be instituted unless, in each case, a director or executive officer of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of such proceedings, order, stop order or action. In addition, such opinion may be limited to present statutes, regulations and judicial interpretations and to facts as they presently exist; in rendering such opinion, such counsel need assume no obligation to revise or supplement it should the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required present laws be changed by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 2 contracts
Sources: Agency Agreement (Oconee Federal Financial Corp.), Agency Agreement (Oconee Federal Financial Corp.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion Conversion, including the Offering, in all material respects in accordance with the Plan, the Conversion Regulations (except to Regulations, the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), BHC Act and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Offering imposed upon them by the Federal Reserve Board or any other applicable regulatorAgencies.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been be approved by the Federal Reserve Board Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board Agencies or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.received:
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇▇, special counsel for the AgentCompany and the Bank, in form and substance as reasonably acceptable to the Agenteffect that:
(i) The Company has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Maryland; the Company is qualified to do business as a foreign corporation in Illinois and in each jurisdiction in which the conduct of its business requires such qualification.
(eii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a validly existing Illinois savings bank in capital stock form of organization, authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock has been duly authorized, and is validly issued, fully paid and non-assessable and is owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Chicago. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "Allied First Bank's Conversion - Effects of the Conversion - Depositor's Rights if We Liquidate," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Upon consummation of the Offering, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Offering, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC and bank holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions and their holding companies, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the OBRE and the FDIC and the Prospectus has been authorized for use by the Agencies, and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval. The Holding Company Application has been approved by the FRB and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank.
(ix) Subject to the satisfaction of the conditions to the Agencies' approval of the Offering, including Agent’s participation thereinno further approval, shall have been furnished prior to registration, authorization, consent or other order of any federal regulatory agency is required in connection with the mailing execution and delivery of this Agreement, the issuance of the ProspectusShares and the consummation of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered). To such counsel's Actual Knowledge, the Offering has been consummated in all material respects in accordance with Conversion Regulations and the BHC Act, except that no opinion is rendered with respect to (a) the Conversion Application, the Holding Company with a copy thereof addressed to Agent Application, the Registration Statement or upon Prospectus, which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state are covered by other clauses of this opinion, (b) the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration satisfaction of the Shares post-Offering conditions in the Conversion Regulations or in the Agency approvals of the Conversion Application and the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions and (d) the rules and regulations of the NASD.
(x) The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OBRE and the FDIC, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, Illinois and federal law and all applicable state securities rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered). At the time the Holding Company Application, including the Prospectus contained therein, was approved by the FRB, the Holding Company Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, Illinois and federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations, the BHC Act and federal law.
(fxiii) At the Closing Date, the Agent shall receive a certificate The terms and provisions of the Chief Executive Officer and the Chief Financial Officer of each Shares of the Primary Parties Company conform, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Dateall material respects, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given description thereof contained in the Registration StatementStatement and Prospectus, and the General Disclosure Package form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company or the Bank is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement including ordinary routine litigation incidental to the Prospectus that has not been so set forthCompany's or the Bank's business, including specificallyare, but without limitation, any material adverse change considered in the conditionaggregate, financial not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or otherwise, other instruments required to be described or referred to in the earningsConversion Application, capitalthe Holding Company Application, propertiesthe Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, business the Holding Company Application, the Registration Statement or prospects the Prospectus. The description in the Conversion Application, the Holding Company Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvi) To such counsel's Actual Knowledge, the Company and the Bank have conducted the Offering, in all material respects, in accordance with all applicable requirements of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Plan and the conditions set forth in this Section 8 have been satisfied; (iii) the representations applicable Illinois and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied federal law. The Plan complies in all material respects with all material agreements applicable Illinois and satisfied all conditions on their part to be performed or satisfied at or prior to federal laws, rules, regulations, decisions and orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OBRE, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending instituted or, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, threatened by the Federal Reserve Board OBRE, the Commission, the FDIC, or any other federal or state authority; authority and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator Agencies, approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and Prospectus, any material loss Conversion Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material federal licenses, permits and other federal governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its articles of incorporation, charter and bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary Parties considered as one enterpriseCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, from the execution and as delivery of this Agreement, the occurrence of the latest date as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) none the establishment of the Primary Parties shall have received liquidation account); and, such action will not result in any violation of the provisions of the charter or bylaws of the Company or the Bank or, result in any violation of any applicable federal law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the laws of the State of Maryland; the Bank's charter and bylaws comply in all material respects with the rules and regulations of the Agencies.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from any Governmental Entity any direction (oral the OBRE, FRB or written) the FDIC to make any material change in the method of conducting their business with which it its respective business.
(xxi) The information in the Prospectus under the captions "Summary - The Stock Offering," "Summary - Terms of the Offering," "Summary - Termination of the Offering," "Risk Factors" (relating to takeover defensive provisions), "Allied First Bank's Conversion," "How We Are Regulated," "Restrictions on Acquisition of Allied First Bancorp and Allied First Bank" and "Description of Capital Stock of Allied First Bancorp, Inc.," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has not complied been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none respects. The discussion of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice statutes or lapse of time regulations described or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with accurate summaries and fairly present the 1933 Act, applicable accounting requirements of information required to be shown. The information under the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning caption "Allied First Bank's Conversion - Effects of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements - Tax Effects of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shConversio
Appears in 2 contracts
Sources: Agency Agreement (Allied First Bancorp Inc), Agency Agreement (Allied First Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Offering are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties Holding Company and the Bank herein are, contained are at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Holding Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been Applications approved by the Federal Reserve Board Regulatory Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of Holding Company's or the Primary PartiesBank's best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Holding Company's or the Bank's best knowledge, threatened by the Regulatory Agencies, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇Krei▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇x▇▇▇▇▇ & ▇▇▇▇ape▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement▇▇▇, counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent to the effect that:
(di) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Indiana, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Holding Company.
(ii) The Bank is a duly organized and validly existing Indiana banking corporation with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the Regulatory Agencies; the issuance and sale of the capital stock of the Bank to the Holding Company has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefore as described in the Prospectus, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed by law and to such no proceedings for the termination or revocation of such insurance are pending or threatened.
(iv) Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be as set forth in the Prospectus under the caption "Capitalization," and no Shares have been or will be issued and outstanding prior to the Closing Date; the Shares of the Holding Company to be subscribed for in the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company against payment of the consideration therefor, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Holding Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Holding Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 8 and 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vi) Subject to the satisfaction of the conditions to the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
(vii) The Applications, including the Prospectus as filed with the Regulatory Agencies, been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the FRB and no action has been taken, or to such counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(viii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or threatened.
(ix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Holding Company, the Bank or any person subscribing for shares in the Offering.
(x) The terms and provisions of the Shares conform to the description thereof contained in the Registration Statement and the Prospectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are in due and proper form.
(xi) At the Closing Datetime the Applications, including the Prospectus contained therein, were approved, the Agent shall have received Applications (as amended or supplemented) complied as to form in all material respects with the favorable opinion, dated as requirements of the Closing Date Regulatory Agencies and addressed all applicable laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Regulatory Agencies approving the Applications.
(xii) At the time that the Registration Statement became effective (i) the Registration Statement (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xiii) There are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or, (ii) seeking to prevent the Offering.
(xiv) The information in the Prospectus under the caption "Supervision and Regulation", to the Agent extent that it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been prepared by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xv) The Holding Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are in full force and effect and the Holding Company and the Bank are in all material respects complying therewith.
(xvi) Neither the Holding Company nor the Bank is in violation of its benefitarticles of incorporation or its bylaws or to the best of such counsel's knowledge, in violation of any 21 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Holding Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not conflict with, constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Holding Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Holding Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Holding Company or the Bank is subject. In addition, such action will not result in any material violation of the provisions of the articles of incorporation or bylaws of the Holding Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Holding Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Krie▇ ▇▇▇▇▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, ▇▇P, special counsel for the Holding Company and the Bank, in form and substance to the effect that: In addition, during the preparation of the Registration Statement and the Prospectus, Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP& ▇ape▇▇▇▇, special ▇▇P, participated in conferences with certain officers of and other representatives of the Bank and the Holding Company, counsel for to the Agent, in form representatives of the independent public accountants for the Bank and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from Holding Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP relating & ▇ape▇▇▇▇, ▇▇P, is not passing upon and does not assume the accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Holding Company), nothing has come to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing attention of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions& ▇ape▇▇▇▇, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date▇▇P, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counselthat caused Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, dated as of such Closing Date▇▇P, to believe that the effect that: (i) they have carefully examined the Prospectus and, in their opinionRegistration Statement, at the time it was declared effective by the SEC or the Prospectus became authorized for final useor as of its date, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since it being understood that counsel need express no comment or opinion with respect to the respective dates as of which information is given financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration StatementStatement or Prospectus). The opinion shall be limited to matters governed by the laws of the United States or the State of Indiana. In rendering such opinion, such counsel may rely (A) as to matters involving the General Disclosure Package application of laws of any jurisdiction other than the United States or Indiana, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent and the ProspectusAgent's counsel, no event has occurred as long as such other opinion indicates that should have been set forth in an amendment or supplement the Agent may rely on the opinion, and (B) as to matters of fact, to the Prospectus that has not been so set forthextent such counsel deems proper, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects on certificates of responsible officers of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Holding Company and the conditions set forth in this Section 8 have been satisfiedBank and public officials; (iiiprovided copies of any such opinion(s) the representations and warranties in Section 4 or certificates of public officials are true and correct delivered to you together with the same force opinion to be rendered hereunder by counsel to the Holding Company and effect as though expressly made at and the Bank. The opinion of such counsel for the Holding Company shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(3) The favorable opinion, dated as of the Closing Date; (iv) , of counsel for the Primary Parties have complied in all material respects Agent, with all material agreements respect to such matters as the Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness directors of the Registration Statement has been initiated or, to Holding Company and the knowledge of the Primary Parties, threatened by the Commission Bank delivered pursuant hereto or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversionas such counsel may reasonably request.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated as of the date hereof and addressed to the Agent: , (i) such letter confirming that BDO USA, Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent registered public accountants within the applicable rules meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder, and no information concerning its relationship with or interests in the Holding Company Accounting Oversight Board (United States) or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in its Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP's opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the SEC Commission thereunder and the 1933 Actgenerally accepted accounting principles; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) reading of the latest available unaudited interim financial statements of the Mid-Tier Holding Company and the Bank prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derivedBank, a reading of the minutes of the meetings of the Boards Board of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 2 contracts
Sources: Agency Agreement (Lafayette Community Bancorp), Agency Agreement (Lafayette Community Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Eastern Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Eastern Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Eastern Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion BHCA, the Massachusetts Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board FRB and the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Eastern Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Eastern Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority.
(c) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall have received the favorable opinionopinion and negative assurance statement, dated as of the Closing Date and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇ and for its their benefit, of ▇▇▇▇▇ ▇▇, counsel for the Eastern Parties, in form and substance as attached hereto as Exhibit A.
(d) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ LLPshall have received the favorable opinion and negative assurance statement, special counsel for dated as of the Primary Parties, which shall also state that Closing Date and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇ and for their benefit, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & , counsel for the Agent, in form and substance satisfactory to the Agent and ▇.▇. ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C..
(de) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of ▇▇▇a blue sky memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & relating to the Offering, including the Agent’s participation therein, shall have been furnished to the Holding Company with a copy thereof addressed to the Agent or upon which ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Eastern Parties in form and substance reasonably satisfactory to the Agent’s CounselAgent and ▇.▇. ▇▇▇▇▇▇, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Eastern Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Eastern Parties independently, or of the Primary Eastern Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Eastern Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Eastern Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Eastern Parties, threatened by the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority; and (viiviii) to the best knowledge of the Primary Eastern Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Eastern Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, except that individually or in the aggregate would not have a Material Adverse Effect, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Eastern Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Eastern Parties shall have received from any Governmental Entity the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Eastern Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Eastern Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Eastern Parties, threatened against the any of the Primary Eastern Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingEastern Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Eastern Parties.
(i) Concurrently with the execution of this Agreement, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received (i) a letter from BDO USA, Ernst & Young LLP, dated as of the date hereof and addressed to the Agent: (i) Agent and ▇.▇. ▇▇▇▇▇▇, confirming that BDO USA, Ernst & Young LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that form and substance reasonably satisfactory to the Agent and ▇.▇. ▇▇▇▇▇▇, containing statements and information of the type customarily included in its opinion accountants’ “comfort letters” to underwriters with respect to the financial statements and related notes certain financial information contained in each of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 Registration Statement and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating provided that (A) during the period from the date of the recent developments financial information included in the “Recent Developmentscut-off date” section for purposes of the Prospectus to a specified date such letter shall not be more than three business days prior to the date of this Agreement; and (ii) a certificate of the chief financial officer of the MHC, dated as of the date hereof and addressed to the Agent and ▇.▇. ▇▇▇▇▇▇, with respect to certain financial data contained in the Registration Statement and the Prospectus, except as has been described providing “management comfort” with respect to such information, in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company form and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior substance reasonably satisfactory to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; Agent and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding)▇.▇. ▇▇▇▇▇▇.
(j) At the Closing Date, the Agent and ▇.▇. ▇▇▇▇▇▇ shall receive have received (i) a letter dated the Closing Date, addressed to the AgentAgent and ▇.▇. ▇▇▇▇▇▇, (i) confirming the statements made by BDO USA, Ernst & Young LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the immediately preceding paragraph; provided that the “specified cut-off date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards a certificate of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) chief financial officer of the unaudited interim financial statements MHC, dated as of the Mid-Tier Holding Company prepared by date hereof and addressed to the Mid-Tier Holding Company Agent and from which ▇.▇. ▇▇▇▇▇▇, confirming the “Recent Developments” information included statements made in the Prospectus was derived, a reading of certificate delivered by such officer pursuant to the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectusimmediately preceding paragraph.
(k) At the Closing Date, the Holding Company shall receive have received a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Eastern Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Massachusetts Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receivehave received: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order a letter from the Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission that declared the Registration Statement effective; (iiiiv) certificates from the Federal Reserve Board Secretary of State of the Commonwealth of Massachusetts evidencing the valid existence and good standing of the MHC MHC, the Holding Company and the Mid-Tier Holding CompanyEIG; (ivv) a certificate from the New Jersey Banking Department Division evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-New York FHLBB evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the The Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(n) At or prior to the Closing Date, the Holding Company shall have filed a Form 8-A with the Commission registering the Shares under Section 12(b) of the Exchange Act.
(o) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Eastern Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Eastern Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Eastern Party to the Agent as to the statements made therein.
Appears in 2 contracts
Sources: Agency Agreement (Eastern Bankshares, Inc.), Agency Agreement (Eastern Bankshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, all requirements of Indiana law, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.received:
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPL.L.P., special counsel for the AgentCompany and the Bank, in form and substance as reasonably acceptable to the Agenteffect that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana.
(eii) A blue sky memorandum The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing federally chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Indianapolis. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion-Liquidation Rights of Certain Depositors," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Our Capitalization," and no Common Shares have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the Offeringsafety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including Agent’s participation therein, shall have been furnished prior without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the mailing effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the Prospectus, to OTS and the Prospectus has been authorized for use by the OTS. The OTS has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank in accordance with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate Conversion Regulations and the applicable requirements of the Bank's charter and bylaws.
(ix) Subject to the necessity satisfaction of obtaining the conditions to the OTS's approval of the Conversion, no further approval, registration, authorization, consent or confirming exemptionsother order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, qualifications or the registration issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or The Nasdaq Stock Market (as to which no opinion need by rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, federal and state law and all applicable state securities rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(fxiii) At the Closing Date, the Agent shall receive a certificate The terms and provisions of the Chief Executive Officer and the Chief Financial Officer of each Shares of the Primary Parties Company conform, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Dateall material respects, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given description thereof contained in the Registration StatementStatement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the General Disclosure Package Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus, no event has occurred that should have been set forth Prospectus of such documents and exhibits is accurate in an amendment or supplement all material respects and fairly presents the information required to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown.
(iiixvi) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied The Plan complies in all material respects with all material agreements applicable federal and satisfied all conditions on their part Indiana laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to be performed or satisfied at or prior to the Closing Datesuch counsel's Actual Knowledge, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OTS, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, instituted or threatened by the Federal Reserve Board OTS, the Commission, the FDIC, or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and ProspectusConversion Application, any material loss the Holding Company Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary Parties considered as one enterpriseCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, from the execution and as delivery of this Agreement, the incurrence of the latest date as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) none the establishment of the Primary Parties shall have received liquidation account); and such action will not result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Bank or, to such counsel's Actual Knowledge, result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or The Nasdaq Stock Market need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Indiana. The Bank's Charter and Bylaws comply in all material respects with federal law.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from any Governmental Entity any direction (oral the OTS or written) the FDIC to make any material change in the method of conducting their business with which it its respective business.
(xxi) The information in the Prospectus under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of Us and Peoples Federal and Related Anti-Takeover Provisions" and "Description of Our Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has not complied been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation respects. The description of the Conversion process in the Prospectus under the caption "The Conversion" to the extent that such information constitutes matters of law, summaries of legal matters, documents or Offering proceedings, or legal conclusions, has been reviewed by such counsel and no statutefairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion-Tax Considerations" has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company and the Bank with respect to such matters. In addition, rule or regulation such counsel shall have been enacted, entered, promulgated or enforced by any Governmental Entity state that prohibits or makes illegal consummation during the preparation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this AgreementApplication, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Conversion Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in the Conversion Application, the Registration Statement or the Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (o) At relying as to materiality as to factual matters on certificates of officers and other factual representations by the Company and the Bank), nothing has come to their attention that would lead them to believe that the Conversion Application, the Registration Statement, the Prospectus, or prior to any amendment or supplement thereto (other than the Closing Datefinancial statements, counsel to the Agent shnotes thereto, and other tabular, financial, statistical and appraisal data in
Appears in 1 contract
Sources: Agency Agreement (PFS Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Magyar Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Magyar Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Magyar Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the NJDBI, the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on and the date of this AgreementNJDBI, or with and the Agent’s consent at a later time and date; and Holding Company Merger Application shall have been approved by the Federal Reserve and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Magyar Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Magyar Parties’ knowledge, threatened by the Federal Reserve, the NJDBI, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.A; and
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Proxy Statements, the Conversion Application, and the Holding Company Merger Application, they participated in conferences with certain officers of, the independent registered public accountants for, and other representatives of, the Magyar Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statements, the Conversion Application, and the Holding Company Merger Application, and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statements, the Conversion Application, and the Holding Company Merger Application and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Magyar Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statements, Conversion Applications, and the Holding Company Merger Application, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from RSM US LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that RSM US LLP is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of RSM US LLP, the financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the Magyar Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Magyar Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Magyar Parties, which are subject to the internal controls of the accounting system of the Magyar Parties and other data prepared by the Magyar Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall have received the favorable opinion, receive a letter from RSM US LLP dated as of the Closing Date and Date, addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in form and substance as reasonably acceptable clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the AgentClosing Date.
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating At the Closing Date, counsel to the Offering, including Agent’s participation therein, Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselMagyar Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary Magyar Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vi) no order suspending the ConversionNJDBI, the Offering or Federal Reserve, the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the NJDBI and the Federal Reserve Board in approving the Applications or any other applicable regulator approving to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from RP Financial LC., dated as of the Closing Date:
(i) confirming that said firm is independent of the Magyar Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Magyar Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Magyar Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Magyar Parties considered independently, or the Magyar Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator the NJDBI approving the Conversion Application and Application, (ii) a copy of the letter from the Federal Reserve approving the Holding Company Application and authorizing the use of the Prospectus; Merger Application, (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; , (iv) a certificate from the FHLB-New Jersey Banking Department York evidencing the good standing of the Bank; ’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; , (vi) a certificate from the FHLB-Federal Reserve Bank of New York evidencing that the Bank’s membership therein; Company is duly registered under the BHC Act, and (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the Magyar Parties will have received from the Federal Reserve, the NJDBI or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents will be in compliance with the Offering provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a Magyar Party and delivered to the Agent or to counsel for the delivery of Agent shall be deemed a representation and warranty by such Magyar Party, to the Shares on Agent as to the terms and in the manner contemplated in the Registration Statement and the Prospectusstatements made therein.
(o) At or A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the Closing Datemailing of the Prospectus, counsel to the Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Conversion Shares under applicable state securities law.
(p) To the extent a sale or other disposition or transfer of shares of Common Stock or other securities of the Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit B hereto shall deliver to the Agent sha “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Company on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing DateDate (except to the extent such representations and warranties speak as of an earlier date), true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Offering and the Reorganization in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the Federal Reserve Board or any other applicable regulator.OTS. 22NEXT PAGE
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been MHC Applications approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated initiated, pending or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPSilver, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementTaff, L.L.P., special counsel for the Company, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they The Company and the MHC have carefully examined been duly incorporated and are validly existing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; United States of America. (ii) since The Company and the respective dates MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; .
(iii) the representations The Bank is a validly existing federally chartered savings bank in stock form, duly authorized to conduct its business and warranties in Section 4 are true and correct with the same force and effect own its property as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included described in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery . The activities of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered Bank as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company General Disclosure Package and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with permitted by the 1933 Actrules, applicable accounting requirements regulations and practices of the Commission, and GAAP applied on a basis substantially consistent with that OTS. All of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent outstanding capital stock of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning Bank upon completion of the Conversion RegulationsOffering will be duly authorized and, (ii) stating in effect that upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Appraisal prepared by such firm complies in all material respects with the applicable requirements Company free and clear of the Conversion Regulationsany liens, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bankencumbrances, as most recently updated, remains in effect.
(l) To the extent a sale claims or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Daterestrictions.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and sale of the Shares and all obligations of the Agent hereunder, as hereunder are subject to the Shares to be delivered at accuracy of the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank contained herein are, at and as of the commencement date hereof and the Closing Time, to the accuracy of the Offering statements of officers and at and as directors of the Closing DateCompany and the Bank made pursuant to the provisions hereof, true to the performance by the Company and correct in all material respects, the condition that the Primary Parties shall have performed all Bank of its their obligations hereunder to be performed on or before such dateshereunder, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Prospectus contained in the FDIC Conversion Application Notice and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on FDIC and the date OTS for mailing prior to the commencement of this Agreementthe Offering, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Securities Act or proceedings therefore initiated or, to the knowledge any of the Primary Cape Parties’ best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Cape Parties’ best knowledge, threatened by the Commission, the Federal Reserve Board FDIC, the Department of Banking, the OTS, the FRB or any other federal or state authoritygovernmental body.
(cb) At the Closing DateTime, the Agent shall have received the received:
i. The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , PC acceptable to Section 8(d) of this Agreement, Agent in form and substance satisfactory to counsel for Agent, as attached hereto as set forth in Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, ii. The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, PC in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP relating to the Offering& ▇▇▇▇▇▇, including Agent’s participation therein, shall have been furnished prior to the mailing PC participated in conferences with certain officers of and other representatives of the ProspectusCape Parties, counsel to Agent, representatives of the Holding Company with a copy thereof addressed independent public accounting firm for the Cape Parties and representatives of Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to Agent or upon which be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall state & ▇▇▇▇▇▇, PC has not independently verified the Agent may rely. The blue sky memorandum will relate accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the necessity attention of obtaining or confirming exemptions▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, qualifications or PC that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC to believe that the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement at the time it was declared effective by the Prospectus became authorized for final useCommission and as of the date of such letter or that the General Disclosure Package as of the Closing Time, the Prospectus did not contain contained or contains any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; misleading (ii) since it being understood that counsel need express no comment or opinion with respect to the respective dates as of which information is given financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or General Disclosure Package and the ProspectusPackage).
iii. The favorable opinion, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and dated as of the Closing Date; (iv) Time, of ▇▇▇▇▇▇▇ & ▇▇▇, PC, counsel for the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Boardwalk Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversionacceptable to Agent in form and substance satisfactory to counsel for Agent, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the ProspectusExhibit D.
iv. The favorable opinion, and since the respective dates dated as of which information is given the Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP, counsel for Agent, as set forth in the Registration Statement and the ProspectusExhibit E; such opinion may rely, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery matters of fact, upon certificates of officers and directors of the Shares on Cape Parties delivered pursuant hereto or as such counsel may reasonably request and upon the terms and in the manner contemplated in the Prospectusopinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA(i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLPLLC, dated as of the date hereof and addressed to the Agent: (i) , such letter confirming that BDO USA▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLP LLC is a firm of independent registered public accountants within the applicable rules meaning of the Code of Professional Ethics of the American Institute of Certified Public Company Accounting Oversight Board (United States) Accountants, the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Cape Parties is required by Item 13 of the Registration Statement, and stating in effect that in its ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC’s opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion Bank included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published rules and regulations of the SEC Commission thereunder and the 1933 ActConversion Regulations and generally accepted accounting principles consistently applied; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of the meetings of the Board of Directors of the Cape Parties, the Audit Committee of the Bank, a review of the unaudited interim financial information as of and for the interim period ending September 30, 2007 and the latest available unaudited quarterly financial statements of the Bank prepared by the Bank which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial Recent Developments information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, Prospectus there was any increase in longnon-term performing loans, special mention loans, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of the MidBank or decrease in assets, deposits, loan losses allowances or retained earnings of the Bank or there was any decrease in net income, non-Tier Holding Companyinterest income, other than normal deposit fluctuations tax expense or net interest income of the Bank or any increase in non-interest expense for the Midnumber of full months commencing immediately after the Recent Developments period and ended on the last month-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days end prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, Prospectus as compared with to the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense which was material to the financial position or net income results of operations of the Mid-Tier Holding CompanyCape Parties; and (iii) stating that, in addition to the audit examination referred to in their its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ic), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system of the Bank and other data prepared by the Mid-Tier Holding Company, Cape Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; , and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(jd) At Concurrently with the Closing Dateexecution of this Agreement, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, from (i) KPMG LLP, dated the date hereof and addressed to Agent, such letter confirming that KPMG LLP is a firm of independent public accountants within the statements made by BDO USAmeaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, LLP the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the letter delivered Boardwalk Parties is required by it pursuant Item 13 of the Registration Statement, and stating in effect that in KPMG LLP’s opinion the financial statements of Boardwalk Bancorp included in the Prospectus covered by KPMG LLP’s opinion therein comply as to subsection (i) form in all material respects with the applicable accounting requirements of this Section 8the Securities Act, the “specified date” referred to in clause (i) Exchange Act and the related published rules and regulations of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to Commission thereunder and the Closing Date Conversion Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards Board of Directors and committees of each of the Primary Parties Boardwalk, the Audit Committee of Boardwalk Bank, a review of the unaudited interim financial information as of and for the interim period ending September 30, 2007 and the latest available unaudited quarterly financial statements of Boardwalk Bancorp prepared by Boardwalk Bancorp which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Mid-Tier Holding Company Boardwalk Bancorp responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and financial information included in the section titled “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable generally accepted accounting requirements of the Commission, and GAAP principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of Boardwalk Bancorp or decrease in assets, deposits, loan losses allowances or retained earnings of Boardwalk Bancorp or there was any decrease in net income, non-interest income, tax expense or net interest income of Boardwalk Bancorp or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Boardwalk Parties; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Boardwalk Bancorp, which are subject to the internal controls of the accounting system of Boardwalk Bancorp and other data prepared by the Boardwalk Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(ke) At Concurrently with the Closing Dateexecution of this Agreement, the Holding Company Agent shall receive a letter from RP Financial, LC.(i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date (i) date hereof and addressed to Agent, such letter confirming that said ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is a firm is of independent of the Primary Parties and is experienced and expert in the area of corporate appraisals public accountants within the meaning of the Conversion RegulationsCode of Professional Ethics of the American Institute of Certified Public Accountants, (ii) the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Cape Parties is required by Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP’s opinion the Appraisal prepared financial statements of the Bank as of December 31, 2005 and for the years ended December 31, 2005 and December 31, 2004 included in the Prospectus covered by such firm complies ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP’s opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published rules and regulations of the Commission thereunder and the Conversion RegulationsRegulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of the meetings of the Board of Directors of the Cape Parties, the Audit Committee of the Bank, a review of the unaudited interim financial information as of and for the interim period ending September 30, 2007 and the latest available unaudited quarterly financial statements of the Company prepared by the Bank which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowances or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense or net interest income of the Bank or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Cape Parties; and (iii) further stating that that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the aggregate pro forma market value procedures referred to in clause (ii) of this subsection (c), they have compared with the Holding Company including general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Cape Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as most recently updatedAgent may reasonably request, remains and they have found such amounts and percentages to be in effectagreement therewith (subject to rounding).
(lf) To At the extent a sale or other disposition or transfer of shares of common stock or other securities Closing Time, Agent shall receive letters from (i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC; (ii) KPMG LLP and (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP dated as of the Holding Company is Closing Time, addressed to Agent, confirming the statements made by in their letters delivered by it pursuant to subsection (c)-(e) of this Section 10, the “specified date” referred to in clause (ii)(B) of such subections to be a date specified in such letter, which shall not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
more than three (m3) At or business days prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestTime.
(ng) Subsequent At the Closing Time, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may require for the purpose of enabling them to advise Agent with respect to the date hereofissuance and sale of the Common Stock as herein contemplated and related proceedings, there shall not have occurred or in order to evidence the accuracy of any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter marketrepresentations and warranties, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either fulfillment of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shof
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all of the respective representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that each of the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion Merger in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorOCC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Merger imposed upon them by the Federal Reserve Board or any other applicable regulatorOCC and the FRB.
(b) Prior to the Closing Date, the Plan shall have been approved by the members of St. ▇▇▇▇▇ in accordance with the Plan, the Conversion Regulations, the applicable provisions, if any, of St. ▇▇▇▇▇’ charter and bylaws and the Proxy Statement.
(c) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Applications (other than the Holding Company Application Waiver Request) shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on OCC, the date of this AgreementFDIC, or with and the Agent’s consent at a later time and dateMDFI, as applicable; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission or any state authority, and no order or other action suspending the approval of the Applications shall have been issued or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission OCC, the FDIC, the MDFI or FRB, or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, threatened by the Commission, FRB, the Federal Reserve Board OCC, the FDIC, the MDFI or any other federal state authority or state authorityGovernmental Authority.
(cd) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as reasonably satisfactory to the Agent, in the form attached hereto as Exhibit C.
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇ Price P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit D. Such opinion may rely upon certificates of officers and directors of the Company, the Bank and St. ▇▇▇▇▇ delivered pursuant hereto or as such counsel shall reasonably request and the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP delivered pursuant to Section 10(d) and the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable LLP delivered pursuant to the AgentSection 10(g).
(ef) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished to the Company prior to the mailing of the Prospectus, to the Holding Company Prospectus with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawlaws.
(fg) The Agent shall have received the opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for St. ▇▇▇▇▇, in form and substance as attached hereto as Exhibit E.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Registration Statement and Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Registration Statement and Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Registration Statement and Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary ▇▇▇▇▇ Parties independentlytaken as a whole and the conditions set forth in this Section 10 have been satisfied; (iii) since the respective dates as of which information is given in the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Primary Parties considered Company and the Bank taken as one enterprisea whole, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary ▇▇▇▇▇ Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Commission or any state authority; (vivii) no order suspending the ConversionConversion Merger, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Federal Reserve Board Commission, the OCC, or any other federal Governmental Authority.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of St. ▇▇▇▇▇ in form and substance reasonably satisfactory to the Agent’s counsel, dated as of such Closing Date, to the effect that: (i) since the date the Prospectus became authorized for final use, there has been no material adverse change in the condition, financial or state authorityotherwise, or in the earnings, capital, properties or business of St. ▇▇▇▇▇, whether or not arising in the ordinary course of business, and the conditions set forth in this Section 10 have been satisfied; (ii) the representations and warranties in Section 5 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (viiiii) St. ▇▇▇▇▇ has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by it after the Closing Date; (vi) no order suspending the Conversion Merger, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of St. ▇▇▇▇▇, threatened by the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the ConversionOCC.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent (i) there shall have been no material adverse change in the financial condition, results of operations or business of the any Primary Parties considered as one enterprise, from and as of Party since the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none there shall have been no material transaction entered into by either the Company, the Bank or St. ▇▇▇▇▇ since the latest dates as of which the financial condition of the Company, the Bank and St. ▇▇▇▇▇ is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) no Primary Parties Party shall have received from any Governmental Entity the FRB, the MDFI, the FDIC or the OCC any direction (oral or written) to make any material change in the method of conducting their its business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and or which would be reasonably be expected likely to have a Material Adverse EffectEffect on the ▇▇▇▇▇ Parties, taken as a whole, or on St. ▇▇▇▇▇, as applicable; (iiiiv) none of the Primary Parties shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board board, other administrative agency or other administrative agencyGovernmental Authority, not disclosed in the Prospectus, shall be pending or, to the knowledge of any of the Primary Parties, threatened against any of the Primary Parties Party or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringsuch Primary Party; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(ik) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, McGladrey LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, McGladrey LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) PCAOB and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2013 and 2014, June 30, 2014 and June 30, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132014, and covered by their opinion included in the Registration Statement and the Prospectus, and any other more recent unaudited financial statements included in the Registration Statement and the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations, and related published rules and regulations of the SEC Commission and the 1933 ActPCAOB; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the PCAOB consisting of a reading of the latest available financial statements of the Company prepared by the Company, a reading of the minutes of the meetings of the Board of Directors of the Company and the Board of Directors of the Bank and consultations with officers of the Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited consolidated interim financial statements included in the Registration Statement and the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act, the 1933 Act Regulations, related published rules and regulations of the Commission and the PCAOB and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of Registration Statement and the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Registration Statement and the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, fluctuations; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits assets or total equity of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Registration Statement and the Prospectus; or (D) there was any decrease in net income or net interest income of the Company in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Registration Statement and the Prospectus to a specified date not more than three business days and ended on the latest month end prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, Prospectus as compared with to the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Registration Statement and the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ik), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, Company directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus Prospectus, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(jl) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit F hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit F hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, McGladrey LLP in the letter delivered by it pursuant to subsection (ik) of this Section 810, the “specified date” referred to in clause (iii)(B) of subsection (ik) to be a date specified in the letter required by this subsection (im) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kn) At the Closing Date, the Holding Company shall receive from St. ▇▇▇▇▇ a letter from RP ▇▇▇▇▇▇▇▇▇ Financial, LC.LLC, dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the BankSt. ▇▇▇▇▇ as converted, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(mo) At or prior to the Closing Date, the Agent shall receivereceive from the ▇▇▇▇▇ Parties or St. ▇▇▇▇▇, as applicable: (i) a copy of the letters from (A) the Federal Reserve Board and any other applicable regulator OCC approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusProspectus and Proxy Statement and approving the Interagency Application and (B) the FRB granting the Holding Company Waiver Request; (ii) a copy certificate of the order existence from the Commission that declared MDFI for the Registration Statement effectiveBank and from the OCC for St. ▇▇▇▇▇; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s and St. ▇▇▇▇▇’ insurance of deposit accounts; (iv) a certificate from the FHLB-Des Moines evidencing the Bank’s and St. ▇▇▇▇▇’ membership therein, respectively; (v) a certificate from the Minnesota Secretary of State evidencing the good standing of the Company; (vi) a certificate from the FHLB-New York FRB evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing valid existence of the Holding CompanyCompany as a registered bank holding company; and (viiivii) such other documents and certificates as the Agent may reasonably request.
(np) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”), the Nasdaq Stock Market (“Nasdaq”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Marketgenerally, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shhav
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing DateDate (except to the extent such representations and warranties speak as of an earlier date), true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Offering and the Reorganization in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, laws or regulations or applicable decisions and ordersor orders of courts or other governmental authorities, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been MHC Applications approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated initiated, pending or, to the Primary Parties’ Company’s or the Bank’s knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its and its counsel’s benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Fish LLP, special counsel for the AgentCompany, the MHC and the Bank, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they The Company and the MHC have carefully examined been duly incorporated and are validly existing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; United States of America.
(ii) since The Company and the respective dates MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package and the Prospectus.
(iii) The Bank is duly incorporated and is a validly existing federally chartered savings bank in stock form, duly authorized and with the corporate power to conduct its business and own its property as described in the Registration Statement, the General Disclosure Package and the Prospectus. The activities of the Bank, the Company and the MHC prior to or following the Reorganization as described in the General Disclosure Package and the Prospectus are permitted by the rules, regulations and practices of the OTS and any other federal or state authority having jurisdiction over such matters. All of the outstanding capital stock of the Bank upon completion of the Offering will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, and to such counsel’s knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and, to such counsel’s knowledge, no event has occurred that should have been proceedings for the termination or revocation of such insurance are pending or threatened.
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in an amendment or supplement to the General Disclosure Package and the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in under the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption “Capitalization,” and the conditions set forth in this Section 8 no Common Shares have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; at the time of the Offering, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus. The Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Bank.
(vi) The Bank, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. This Agreement has been duly authorized, executed and delivered by the Bank, the Company and the MHC; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the Primary Parties indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The MHC Applications, including the Plan, have been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and none is pending or, to such counsel’s knowledge, threatened by the OTS to revoke any such authorization or approval.
(viii) All corporate acts and other proceedings required to be taken by or on the part of the Company, the MHC and the Bank to adopt and approve the Plan and to consummate the transactions contemplated by the Plan and this Agreement, have been properly taken, including the votes of the Board of Directors of the Company, the MHC and the Bank and the members of the Bank.
(ix) All conditions imposed by the OTS in connection with its approvals of the MHC Applications have been satisfied or waived in writing by the OTS, other than any post-closing filings and submissions, and no further approval, authorization, consent or other order of any federal or state regulatory, administrative or other governmental board or body is required in connection with the execution and delivery of this Agreement, the issuance of Shares and the consummation of the Offering and the Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433; and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s knowledge, threatened by the Commission.
(xi) At the time the MHC Applications, including the Plan and the Prospectus contained therein, were approved by the OTS, the MHC Applications, including the Plan and the Prospectus contained therein, complied as to form in all material respects with the requirements of the MHC Regulations (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (A) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (B) the Prospectus (other than the financial statements, the notes thereto, and other tabular, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement, the General Disclosure Package and Prospectus, and the form of certificate used to evidence the Common Shares complies with applicable federal laws.
(xiv) To such counsel’s knowledge after due inquiry, there are no legal or governmental proceedings pending or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) Neither the MHC, the Company nor the Bank are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) To such counsel’s knowledge, neither the MHC, the Company nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xvii) To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC Applications, the Registration Statement, the General Disclosure Package or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC Applications, the Registration Statement, the General Disclosure Package or the Prospectus. The description in the MHC Applications, the Registration Statement, the General Disclosure Package and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xviii) The OTS approval of the Plan remains in full force and effect; to such counsel’s knowledge, the Company, the MHC and the Bank have conducted the Offering and the Reorganization in all material respects in accordance with the requirements of the MHC Regulations, federal law, all other applicable regulations, decisions and orders and the Plan, including all material applicable terms, conditions, requirements and conditions precedent to the Reorganization imposed by the OTS except that no opinion need be rendered with respect to (a) the MHC Applications, the Registration Statement, the General Disclosure Package or Prospectus, which are covered by other clauses of this opinion, (b) the satisfaction of any post-closing filings and submissions, (c) the state securities or “blue sky” laws of various state jurisdictions to the extent they directly pertain to the obtaining or confirming exemptions, qualifications or the registration of the Common Stock under the state securities laws of all of the states of the United States and the District of Columbia, and (d) the rules and regulations of FINRA. The Plan complies in all material respects with all material agreements applicable federal law, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8MHC Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OTS, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending instituted or, to the knowledge of the Primary Partiessuch counsel’s knowledge, threatened by the Federal Reserve Board OTS, the Commission, the FDIC, or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the MHC Applications or the Prospectus.
(gxix) None To such counsel’s knowledge, neither the MHC, the Company nor the Bank is in violation of the Primary Parties shall have sustainedits Charter and Bylaws, since the date or in default or violation of the latest financial statements included in any agreement or instrument filed as an exhibit to the Registration Statement; to such counsel’s knowledge, the General Disclosure Package execution and Prospectusdelivery of this Agreement, any material loss the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insuranceconstitute a breach of, or from default under, or result in the creation or imposition of any labor dispute lien, charge or encumbrance upon any property or assets of the MHC, the Company or the Bank pursuant to any agreement or instrument filed as an exhibit to the Registration Statement; and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, Bank or MHC, or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of FINRA need be rendered) or order or court or governmental actionorder, order writ, injunction or decree.
(xx) The Company’s, otherwise than Bank’s and MHC’s Charter and Bylaws each comply in all material respects with the laws of the United States of America, including the rules and regulations of the OTS.
(xxi) The information in the Prospectus under the captions “Regulation and Supervision,” “The Reorganization and Stock Offering,” “Restrictions on Acquisition of Auburn Bancorp, Inc.,” and “Description of Auburn Bancorp, Inc., Capital Stock” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “Material Tax Consequences” has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by such counsel and Berry, Dunn, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, respectively, to the Company, the MHC and the Bank with respect to such matters.
(xxii) To the extent required by applicable law, each of the Company, the Bank and the MHC is duly qualified as set forth a foreign corporation to transact business in the state of Maine. In addition, such counsel shall state that during the preparation of the MHC Applications, the Registration Statement and the Prospectus, such counsel participated in conferences with certain officers of, the independent public and since internal accountants for, and other representatives of, the respective dates as Company, the MHC and the Bank, at which conferences the contents of which information is given in the MHC Applications, the Registration Statement and the ProspectusProspectus and related matters were discussed and, there shall while such counsel have not have been any Material Adverse Effect that is confirmed the accuracy or completeness of or otherwise verified the information contained in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with MHC Applications, the Offering Registration Statement or the delivery Prospectus and do not assume any responsibility for such information, based upon such conferences and a review of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding documents deemed relevant for the purpose of enjoining or prohibiting the consummation rendering their opinion (relying as to materiality as to factual matters on certificates of the Conversion or Offering officers and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to other factual representations by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from Bank), nothing has come to their attention that would lead them to believe that the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereofMHC Applications, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and Statement, the Prospectus.
(, o) At or prior to the Closing Date, counsel to the Agent sh
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or the FDIC or any other federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP▇▇▇▇▇, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special counsel mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely on reasonably request, and they have found such opinion amounts and percentages to be in rendering its opinion pursuant agreement therewith (subject to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.rounding).2
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state dated the Agent may rely. The blue sky memorandum will relate Closing Date, addressed to the necessity Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of obtaining or confirming exemptions, qualifications or such letter shall not be more than three business days prior to the registration of the Shares under applicable state securities lawClosing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv4) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the FDIC or any other federal or state authority; and and
(vii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator the FDIC in approving the Applications or to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties considered independently, or the Primary Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: parties will have received (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Company Application; (ii) a copy of the letter from the Commissioner approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate copy of the letter from the New Jersey Banking Department evidencing FDIC expressing the good standing of FDIC’s non-objection to the BankConversion; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York Boston evidencing the Bank’s membership therein; (vii) a certificate from the Secretary of State of the State of Maryland State Department of Assessments and Taxation evidencing the good standing valid existence of the Holding Company; (viii) a certificate from the Massachusetts Division of Banks evidencing the valid existence of the Bank; (ix) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; and (viiix) such any other documents and certificates as the document that Agent may reasonably request.
(nl) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i1) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii2) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii3) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Closing Date, counsel provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank, herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company MHC-2 Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s or the Bank’s knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, Company in form and substance as reasonably acceptable to the Agenteffect that:
(i) The Company and the MHC have been duly incorporated and are validly existing as corporations under the laws of the United States of America.
(eii) A blue sky memorandum The Company and the MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally-chartered savings bank in stock form and is duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank is duly authorized and validly issued, fully-paid and non-assessable and is owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened;
(v) Immediately following the consummation of the Offering, the authorized, issued and outstanding common shares of capital stock of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of capital stock of the Company have been issued prior to the Closing Date (other than shares of common stock issued to the MHC); at the time of the Offering, the Common Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP the ESOP lending subsidiary to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights (other than subscription rights as provided in the Plan) and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel’s Actual Knowledge, the Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company.
(vi) Each of the Company and the Bank has full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the Offering have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank, in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of federally chartered savings institutions or holding companies as applicable, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The MHC-2 Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel’s Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) Based upon the minutes of the proceedings of the Board of Directors, the Plan has been duly adopted by the required vote of the directors of the Company.
(ix) Subject to the satisfaction of the conditions to the OTS’s approval of the Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement and the issuance of the Shares, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s Actual Knowledge, threatened by the Commission.
(xi) At the time the MHC-2 Application, including Agent’s participation the Prospectus contained therein, shall have been furnished prior was approved by the OTS, the MHC-2 Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations except as waived in writing or otherwise approved by the OTS (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the shares of common stock of the Company conform, in all material respects, to the mailing description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares complies with applicable laws.
(xiv) To such counsel’s Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) Neither the MHC, the Company nor the Bank are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) To such counsel’s Actual Knowledge, neither the MHC, the Company nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xvii) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC-2 Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC-2 Application, the Registration Statement or the Prospectus. The description in the MHC-2 Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xviii) Except as waived in writing or otherwise approved by the OTS, the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Reorganization Regulations; to such counsel’s Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state final action of the Agent may rely. The blue sky memorandum will relate to OTS approving the necessity of obtaining or confirming exemptionsPlan, qualifications the MHC-2 Application or the registration of the Shares under applicable state securities lawProspectus.
(fxix) At the Closing DateTo such counsel’s Actual Knowledge, the Agent shall receive Company, the MHC and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses as described in the Registration Statement, and all such licenses, permits and other governmental authorizations are in full force and effect, and the MHC, the Company and the Bank are in all material respects complying therewith.
(xx) To such counsel’s Actual Knowledge, none the MHC, the Company the Bank is in violation of its Charter and Bylaws or in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a certificate party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Chief Executive Officer MHC, the Company and the Chief Financial Officer Bank on a consolidated basis; to such counsel’s Actual Knowledge, the execution and delivery of each this Agreement, the incurrence of the Primary Parties obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in form the creation or imposition of any lien, charge or encumbrance upon any property or assets of the MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject; and substance reasonably satisfactory such action will not result in any violation of the provisions of the Charter or Bylaws of the Company, the Bank or MHC, or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the Agentsecurities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xxi) Except as waived in writing or otherwise approved by the OTS, the Company’s, Bank’s Counseland MHC’s Charter and Bylaws each comply in all material respects with the laws of the United States of America.
(xxii) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation,” (with respect to federal taxation only) “The Offering,” “Restrictions on the Acquisition of United Financial Bancorp, dated as Inc. and United Bank” and “Description of such Closing DateCapital Stock of United Financial Bancorp, Inc.,” to the effect that: (i) they have carefully examined extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The description of the Offering process in the Prospectus under the caption “The Offering” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present, in all material respects, the information required to be shown. The information under the caption “The Offering — Tax Effects of the Offering” has been reviewed by such counsel and fairly describes the federal tax opinions rendered by them to the Company with respect to such matters. In addition, such counsel shall state that during the preparation of the MHC-2 Application, the Registration Statement and the Prospectus, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company, the MHC and the Bank, at which conferences the contents of the MHC-2 Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in their opinionthe MHC-2 Application, at the time Registration Statement or the Prospectus became authorized and do not assume any responsibility for final usesuch information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Company), nothing has come to their attention that would lead them to believe that the MHC-2 Application, the Prospectus did not contain Registration Statement, the Prospectus, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates . In giving such opinion, such counsel may rely as to all matters of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment fact on certificates of officers or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects directors of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system MHC and other data prepared the Bank and certificates of public officials. Such counsel’s opinion shall be limited to matters governed by the Mid-Tier Holding Companyfederal laws and, directly from such accounting records, with respect to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith paragraph (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (ic)(1)(iii) of this Section 87, by the “specified date” referred laws of the State of Massachusetts; provided, that counsel may rely upon the opinion of Massachusetts counsel with respect to in clause (i) matters of subsection (i) to be a date specified in the letter required by this subsection (i) which for Massachusetts laws. For purposes of such letter opinion, no proceedings shall not be more than three business days prior deemed to the Closing Date be pending, no order or stop order shall be deemed to be issued, and (ii) stating no action shall be deemed to be instituted unless, in effect thateach case, on the basis of certain agreed upon procedures (but not an audit in accordance with standards a director or executive officer of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing DateCompany, the Holding Company MHC or the Bank shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) have received a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the such proceedings, order, stop order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) or action. In addition, such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shopinion ma
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations FRB Regulations, the FRB Commitments and the New Jersey Banking Act (except to the extent waived or otherwise approved by the Federal Reserve Board FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission Commission, the Holding Company Application and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board FRB and the New Jersey Application shall have been approved by the New Jersey Banking Department not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; , and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the New Jersey Banking Department or any other federal Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, propertiesproperties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board FRB, the New Jersey Banking Department or any other federal Federal or state authority; and (viiviii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, New Jersey Banking Department or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties Parties, considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity the FRB, the New Jersey Banking Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Primary Parties, taken as a Material Adverse Effectwhole; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statutePrimary Parties, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringtaken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, KPMG LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, KPMG LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 2011 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the New Jersey Banking Department and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyTier, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyTier, which are subject to the internal controls of the Mid-Tier Holding CompanyTier, the accounting system and other data prepared by the Mid-Tier Holding CompanyTier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company dated as of the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, KPMG LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kl) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission that has declared the Registration Statement effective; (iiiiv) certificates certificate from the Federal Reserve Board New Jersey Department of State evidencing the valid existence of the MHC MHC; (v) certificate from the Delaware Secretary of State evidencing the valid existence and good standing of the Mid-Tier Holding CompanyTier; (ivvi) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (vvii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (viiix) a certificate from the Maryland Delaware Secretary of State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the New Jersey Application by the New Jersey Banking Department; and (viiixi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares and the contribution of the Foundation Shares to the Foundation as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Primary Parties in connection w
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementReserve, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPElias, special counsel for the Primary PartiesMatz, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , L.L.P. and/or local counsel acceptable to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable satisfactory to the AgentAgent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Pennsylvania and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(eii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the OfferingThe Bank is a duly organized and validly existing federally-chartered savings bank, including Agent’s participation therein, shall have been furnished prior to the mailing and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus, to ; the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration activities of the Shares under applicable state securities law.
(f) At Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OCC, the FDIC and the Federal Reserve; and at the Closing Date, the Agent shall receive a certificate issuance and sale of the Chief Executive Officer capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Chief Financial Officer Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law, with respect to the Holding Company by the laws of the Commonwealth of Pennsylvania, and with respect to the Bank by the laws of the United States. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and to such counsel’s knowledge all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of good standing the FHLB of Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, except to the extent that such enforceability may be limited by bankruptcy, moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions, the accounts of which are insured by the FDIC, and except to the extent enforcement hereof is subject to general equity principles (either in a proceeding in equity or at law) and laws and judicial decisions regarding the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Members in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the Federal Reserve, the Commission, the OCC, or any other governmental agency, if any, were complied with by the Primary Parties in form all material respects or appropriate waivers were obtained and substance reasonably satisfactory to all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application (including the Agent’s CounselPlan, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should the Members’ Proxy Statement, and the Stockholders’ Proxy Statement) and the Holding Company Application have been set forth in an amendment or supplement approved by the Federal Reserve, and subject to the Prospectus that has not been so set forth, including specifically, but without limitation, satisfaction of any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in Section 4 are true and correct connection with the same force execution and effect as though expressly made at delivery of this Agreement, the offer, sale and as issuance of the Closing Date; Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(ivxii) The acquisition by the Primary Parties have complied in Holding Company of all material respects with all material agreements of the issued and satisfied all conditions on their part outstanding capital stock of the Bank has been authorized by the Federal Reserve, and no action has been taken or is pending or, to be performed such counsel’s knowledge, threatened to revoke any such authorization or satisfied at or prior to approval.
(xiii) The Registration Statement has become effective under the Closing Date1933 Act, including the conditions contained in this Section 8; (v) and no stop order suspending the effectiveness of the Registration Statement has been initiated issued or proceedings for that purpose have been instituted or, to the knowledge of the Primary Partiessuch counsel’s knowledge, threatened by the Commission or any state authority; Commission.
(vixiv) no order suspending The material tax consequences of the ConversionConversion are set forth in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects.” The information in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects” has been reviewed by such counsel and fairly describes the opinions rendered by such counsel and ParenteBeard LLC to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock complies with all statutory requirements.
(xvi) At the time the Applications were approved and as of the Closing Date, the Offering Applications (as amended or supplemented), the use Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Prospectus has been issued Conversion Regulations and no proceedings for that purpose are pending orall applicable laws, to the knowledge rules and regulations and decisions and orders of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary PartiesReserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator in approving the ConversionApplications filed with the Federal Reserve.
(gxvii) None At the time that the Registration Statement became effective and as of the Primary Parties shall have sustainedClosing Date, since the date of the latest financial statements included in the Registration Statement, including the General Disclosure Package and ProspectusProspectus (as amended or supplemented) (other than the financial statements, any material loss or interference with its business from firenotes to financial statements, explosion, flood financial tables or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement financial and statistical data included therein and the Prospectus, and since the respective dates as of which information is given in the Registration Statement appraisal valuation and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse business plan as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC 1933 Act and the 1933 Act; Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) stating seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Regulation,” “The Conversion and Offering - Tax Aspects” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Malvern Bancorp-Federal,” [to be added] “Restrictions on Acquisition of Malvern Bancorp-New,” “Description of our Capital Stock,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States, the State of New York and the Commonwealth of Pennsylvania. In rendering such opinion, such counsel may rely (A) during as to matters involving the period from application of laws of any jurisdiction other than the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior United States, to the date extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the ProspectusAgent, except as has been described in long as such other opinion indicates that the ProspectusAgent may rely on the opinion, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date as to matters of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting recordsfact, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect thatcounsel deems proper, on the basis certificates of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each responsible officers of the Primary Parties and consultations public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to the Agent together with officers the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them Primary Parties shall state that it has no reason to believe that: (Athat the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties shall also state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectusreliance.
(k2) At The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. in form and substance to the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that during the Appraisal prepared by such firm complies in all material respects with the applicable requirements preparation of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to , Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. participated in conferences with certain officers of and other representatives of the Closing DatePrimary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent shat which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. has not independently verified the accuracy, completeness or f
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary GS Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary GS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary GS Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Reserve, the Department and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on and the date of this AgreementNY Applications shall have been approved by the Department and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary GS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the GS Parties’ knowledge, threatened by the Federal Reserve, the Department, the Commission, the Federal Reserve Board or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received received:
(1) The opinion, dated as of the favorable opinionClosing Date, of KTS, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A; and
(2) The letter, dated as of the Closing Date, of KTS, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as set forth in the last paragraph of Exhibit A.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from B▇▇▇▇▇▇, dated the date hereof and addressed to the Agent, such letter (i) confirming that B▇▇▇▇▇▇ is a firm of independent registered public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of B▇▇▇▇▇▇, the Company’s consolidated financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Audit Standard No. 4105) of the latest available unaudited consolidated interim financial statements prepared by the Company, a reading of the minutes of the meetings of the Boards of Directors of the GS Parties and committees thereof and consultations with officers of the GS Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Company and its subsidiaries, which are subject to the internal controls of the accounting system of the Company and its subsidiaries and other data prepared by the Company and its subsidiaries from their accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from B▇▇▇▇▇▇, dated as of the Closing Date and addressed to the Agent and for Agent, confirming the statements made by its benefitletter delivered pursuant to subsection (d) of this Section 11, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties“specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant not be more than three business days prior to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.the Closing Date.
(df) At the Closing Date, counsel to the Agent shall have received the favorable opinion, dated been furnished with such documents as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as Agent may reasonably acceptable require for the purpose of enabling them to advise the Agent with respect to the Agentissuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselGS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary GS Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by GBI, or the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the Department or any other federal or state authority; and ;
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing or to enjoin the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shConversion;
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or the FDIC or any other federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ LLP may rely dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇ LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such opinion unaudited financial statements included in rendering the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion pursuant included in the Prospectus and the performance of the procedures referred to Section 8(din clause (ii) of this Agreementsubsection (d), they have compared with the general accounting records of the Primary Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from accounting records, to the extent specified in form such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and substance as attached hereto as Exhibit C.they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating dated the Closing Date, addressed to the OfferingAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv4) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the FDIC or any other federal or state authority; and and
(vii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator the FDIC in approving the Applications or to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ Financial LLC, dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties considered independently, or the Primary Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: parties will have received (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Holding Company Application; (ii) a copy of the letter from the Federal Reserve approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (viivi) a certificate from the Secretary of State of the State of Maryland State Department of Assessments and Taxation evidencing the good standing valid existence of the Company; (vii) certificates from the Federal Reserve evidencing the valid existence of the Mid-Tier Holding CompanyCompany and the MHC; (viii) a certificate from the Office of the Comptroller of the Currency evidencing the valid existence of the Bank; (ix) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; and (viiix) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i1) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii2) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii3) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At Each of the persons set forth on Exhibit B hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or prior to transfers of shares of Common Stock or certain other securities of the Company which shall be in full force and effect on the Closing Date.
(p) All such opinions, counsel certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations FRB Regulations, the FRB Commitments and the New Jersey Banking Act (except to the extent waived or otherwise approved by the Federal Reserve Board FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission Commission, the Holding Company Application and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board FRB and the New Jersey Application shall have been approved by the New Jersey Banking Department not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; date [, which consent shall not be unreasonably withheld;] and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the New Jersey Banking Department or any other federal Federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Primary Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, propertiesproperties or business of the Primary Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Parties have complied in all material respects with all material agreements and have satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board FRB, the New Jersey Banking Department or any other federal Federal or state authority; and (viiviii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, New Jersey Banking Department or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties Parties, considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity the FRB, the New Jersey Banking Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Primary Parties, taken as a Material Adverse Effectwhole; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against the any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statutePrimary Parties, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offeringtaken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, KPMG LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, KPMG LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 2011 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors of each of the Primary Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the New Jersey Banking Department and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyTier, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyTier, which are subject to the internal controls of the Mid-Tier Holding CompanyTier, the accounting system and other data prepared by the Mid-Tier Holding CompanyTier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, KPMG LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kl) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 192.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order a letter from the FRB approving the Conversion Application; (iii) confirmation that the Commission that declared the Registration Statement effective; (iiiiv) certificates certificate from the Federal Reserve Board New Jersey Department of State evidencing the valid existence of the MHC MHC; (v) certificate from the Delaware Secretary of State evidencing the valid existence and good standing of the Mid-Tier Holding CompanyTier; (ivvi) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (vvii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (viiix) a certificate from the Maryland Delaware Secretary of State Department of Assessments and Taxation evidencing the good standing of the Holding Company; (x) evidence of approval of the New Jersey Application by the New Jersey Banking Department; and (viiixi) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares and the contribution of the Foundation Shares to the Foundation as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all procee
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application, Merger Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementOTS, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C. and/or local counsel acceptable to Section 8(d) of this Agreementthe Agent, in form and substance as attached hereto as Exhibit C.satisfactory to the Agent and counsel for the Agent to the effect that:
(di) At The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the OTS; and at the Closing Date, the Agent shall issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have received a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the favorable opinionlaws of the United States, dated with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the charter or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Members in the manner required by the Conversion Regulations and the charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇ PLLC to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Members’ Proxy Statement (as amended or supplemented) and addressed the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications filed.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Charter Financial Corporation” “Restrictions on Acquisition of Charter Financial Corporation,” “Description of Capital Stock of Charter Financial Corporation Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of Georgia and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its benefitown opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, P.C. in form and substance as reasonably acceptable to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent.
, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (e) A blue sky memorandum from without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP relating & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the Offeringattention of Luse, including Agent’s participation thereinGorman, shall have been furnished prior to the mailing of the Prospectus▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, to the Holding Company with a copy thereof addressed to Agent or upon which P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall state & ▇▇▇▇▇▇, P.C. to believe that the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement at the time it was declared effective by the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at Commission and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect or that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to sell the Shares hereunder are subject to be delivered at (i) the accuracy of the representations and warranties on the part of the Company in all material respects on the date hereof, any applicable date referred to in Section 3(u) and as of each Closing Date, are subject, to (ii) the extent not waived in writing performance by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all Company of its obligations hereunder to be performed on or before such dates, in all material respects and to (iii) the following further conditions:
(a) At the Closing Date, the Primary Parties The Agent shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except received prior to the extent waived initial commencement of sales of Shares hereunder and at every other date specified in Section 3(v) hereof, an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company, or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent co▇▇▇▇▇ ▇ati▇▇▇▇tory to the Conversion imposed upon them by Agent addressed to the Federal Reserve Board or any other applicable regulatorAgent, dated as of such dates and in form and substance satisfactory to the Agent, opining as to the matters set forth in Exhibit A hereto.
(b) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(w) hereof, an opinion of Miles & Stockbridge, P.C., special counsel for the Company, or other counsel satisfactory to the Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, covering matters of Maryland law and opining as to the matters set forth in Exhibit B hereto.
(c) The Agent shall have received from the independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(x) hereof, letters, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent.
(d) The Company shall have furnished prior to the initial commencement of sales of Shares hereunder evidence reasonably satisfactory to the Agent and their counsel that the Registration Statement shall have been declared effective become effective.
(e) No amendment or supplement to the Registration Statement or Prospectus, including documents incorporated by the Commission and the Conversion Application and the Holding Company Application reference therein, shall have been approved by filed to which the Federal Reserve Board not later than 5:30 p.m. on Agent shall have objected in writing.
(f) Prior to the date initial commencement of this Agreement, or with the Agent’s consent at a later time sales of Shares hereunder and date; and at the as of each Closing Date, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authoritypost-effective amendment thereto, and no order directed at any document incorporated by reference therein and no order preventing or other action suspending the authorization use of the any Prospectus or the consummation of the Conversion shall have has been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as and no suspension of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration qualification of the Shares under applicable state securities law.
(f) At the Closing Datefor offering or sale in any jurisdiction, the Agent shall receive a certificate or of the Chief Executive Officer and the Chief Financial Officer initiation or threatening of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as any proceedings for any of such Closing Datepurposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the effect that: statements therein, not misleading; and (iiii) they have carefully examined the Prospectus andand all amendments or supplements thereto, in their opinionor modifications thereof, at the time the Prospectus became authorized for final useif any, the Prospectus did shall not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None Prior to the initial commencement of the Primary Parties shall have sustained, since the date sales of the latest financial statements included in the Registration StatementShares hereunder and as of each Closing Date, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there NASD shall not have been raised any Material Adverse Effect that is in objections with respect to the Agent’s reasonable judgment sufficiently material fairness and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery reasonableness of the Shares on the sales agency terms and in the manner contemplated in the Prospectusarrangements.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion initial commencement of the Agent, there shall have been no material adverse change in the financial condition, results sales of operations or business of the Primary Parties considered as one enterprise, from Shares hereunder and as of the latest date as of which such condition is set forth in the Prospectuseach Closing Date, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered approved for offering and sale or exempted therefrom under listing on the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesNYSE.
(i) Concurrently with Prior to the execution initial commencement of this Agreementsales of Shares hereunder and as of each Filing Date, and each other date referred to in Section 3(u) hereof, the Company shall have delivered to the Agent a certificate of two principal executive officers of the Company certifying to the matters set forth in Exhibit C.
(j) Prior to the initial commencement of sales of Shares hereunder and on each Filing Date, the Manager shall receive a letter from BDO USA, LLP, dated have furnished the Agent such documents and certificates as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus Agreement as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At , including the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectuscertificate attached as Exhibit D hereto.
(k) At All filings with the Closing Date, Commission required by Rule 424 under the Holding Company Securities Act to have been filed shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals have been made within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared applicable time period prescribed for such filing by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectRule.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of Between the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form execution of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board this Agreement and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, Closing Date there shall not have occurred any downgrading, or any notice or announcement shall have been given or made of the following; (i) a suspension any intended or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) potential downgrading or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, any review or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities possible change that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedoes not indicate an improvement, in the Agent’s reasonable judgmentrating accorded any securities of or guaranteed by the Company or any Subsidiary by any "nationally recognized statistical rating organization", to make it impracticable or inadvisable to proceed with as that term is defined in Rule 436(g)(2) under the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusSecurities Act.
(om) At The Company shall perform such of its obligations under this Agreement as are to be performed by the terms hereof at or prior to before the time required for such performance and each Closing Date, counsel to the Agent sh.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary ▇▇▇▇▇ Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary ▇▇▇▇▇ Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary ▇▇▇▇▇ Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorOTS), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary ▇▇▇▇▇ Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary ▇▇▇▇▇ Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary ▇▇▇▇▇ Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the ▇▇▇▇▇ Parties independently, or of the Primary ▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary ▇▇▇▇▇ Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary ▇▇▇▇▇ Parties, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the best knowledge of the Primary ▇▇▇▇▇ Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary ▇▇▇▇▇ Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary ▇▇▇▇▇ Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary ▇▇▇▇▇ Parties shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the ▇▇▇▇▇ Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary ▇▇▇▇▇ Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary ▇▇▇▇▇ Parties, threatened against the any of the Primary ▇▇▇▇▇ Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering▇▇▇▇▇ Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary ▇▇▇▇▇ Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: :
(i) confirming that BDO USA▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June September 30, 2014 2010 and June 2009, and for each of the years in the two-year period ended September 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132010, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the ▇▇▇▇▇ Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary ▇▇▇▇▇ Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board OTS evidencing the valid existence of the MHC Holding Company and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (viv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Indianapolis evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the ▇▇▇▇▇ Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the ▇▇▇▇▇ Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such ▇▇▇▇▇ Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of its their obligations hereunder to be 29 30 performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS and the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Association's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Vorys, Sate▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Peas▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementecial counsel for the Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.:
(i) Concurrently with The Company has been duly incorporated and is validly existing as a corporation under the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as laws of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm State of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; Ohio.
(ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus The Company has corporate power and authority to a specified date not more than three business days prior to the date of the Prospectusown, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company lease and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that operate its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shproperties
Appears in 1 contract
Sources: Agency Agreement (Ohio State Financial Services Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as hereunder and the occurrence of the Closing are subject to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition conditions that (i) all representations and warranties and other statements of the Primary Federal Life Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing DateTime, true and correct in all material respects, and (ii) the condition that the Primary Federal Life Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission Commission, and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge any of the Primary Federal Life Parties’ knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Federal Life Parties’ knowledge, threatened by the Department, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body. The Conversion Application shall have been approved by the Department.
(cb) At the Closing DateTime, the Agent shall have received the favorable opinionreceived:
(1) An opinion or opinions, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇S▇▇▇▇▇▇ & L▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C., as counsel to Section 8(d) of this Agreementthe Federal Life Parties, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent, to the effect that:
(di) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and, to its knowledge, is duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) Prior to the Closing Time Federal Life Mutual was a mutual insurance holding company, and, after the Closing Time, Federal Life will be a duly incorporated and validly subsisting Illinois stock insurance holding company with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and, to its knowledge, is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iii) Federal Life is a corporation duly incorporated and validly subsisting under the laws of the State of Illinois, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and, to its knowledge, is duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iv) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock, $0.01 par value per share, and HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the shares of Common Stock of HoldCo to be subscribed for or for which orders are placed in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (b) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan and the provisions of the Standby Stock Purchase Agreement dated as of March 8, 2018 between the Federal Life Parties and Insurance Capital Group LLC.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Federal Life Parties; and this Agreement constitutes a valid and legal obligation of each of the Federal Life Parties.
(vi) The Plan has been duly adopted by the Board of Directors of Federal Life Mutual in the manner required by the Insurance Code.
(vii) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission or the Department were complied with by the Federal Life Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the Shares will be offered.
(viii) The Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(ix) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Prospectus, insofar as such statements purport to summarize certain provisions of the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof.
(x) At the Closing Datetime that the Registration Statement became effective, the Agent shall have received Registration Statement, including the favorable Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation, as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xii) The information in the Prospectus under the captions “BUSINESS — Regulation,” and “DESCRIPTION OF OUR CAPITAL STOCK,” to the extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form S-1.
(xiii) None of the Federal Life Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xiv) To such counsel’s knowledge, none of the Federal Life Parties is in violation of its Organizational Documents as in effect at the Closing Time. In addition, to such counsel’s knowledge, the execution and delivery of and performance under this Agreement by the Federal Life Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in any material violation of the provisions of the Organizational Documents of any of the Federal Life Parties or any material violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree. In rendering such opinion, dated such counsel may rely as to matters of fact, without independent investigation, on certificates of responsible officers of the Closing Date and addressed Federal Life Parties (to the extent relevant) and public officials, provided copies of any such certificates are delivered to Agent together with the opinion to be rendered hereunder. Such opinion may be limited to the laws of the Commonwealth of Pennsylvania and for its benefitthe federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of ▇▇▇▇▇▇▇▇▇▇ ▇▇any other state.
(2) A letter of S▇▇▇▇▇▇ & L▇▇, PC addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, representatives of S▇▇▇▇▇▇ LLP& L▇▇, special counsel PC participated in conferences with certain officers of and other representatives of the Federal Life Parties, representatives of the independent public accounting firm for the AgentFederal Life Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed, and although (without limiting the opinions provided pursuant to Section 10(b)(1)) S▇▇▇▇▇▇ & L▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the information obtained in the course of engagement as counsel, nothing has come to the attention of the representatives of S▇▇▇▇▇▇ & L▇▇, PC providing services to the Federal Life Parties that caused them to believe that (i) the Registration Statement at the time it was ordered effective by the Commission, (ii) the General Disclosure Package as of the Closing Time, or (iii) the Prospectus, as of its date and as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in form light of the circumstances under which they were made, not misleading (it being understood that counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and substance as reasonably acceptable the Prospectus, and counsel need not express any belief with respect to the Agentfinancial statements, schedules and other financial and statistical data included, statistical or appraisal or valuation methodology employed, or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(e3) A blue sky memorandum from ▇▇▇▇▇ S▇▇▇▇▇▇ LLP & L▇▇, PC addressed to the Federal Life Parties and the Agent relating to the Offering, including the Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fa) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD LLP, dated the date hereof and addressed to the Agent, in the form set forth in Exhibit A hereto.
(b) At the Closing DateTime, the Agent shall receive a letter from BKD LLP dated the Closing Time, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) above, the “specified date” referred to in clause (iii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than six business days prior to the Closing Time.
(c) At the Closing Time, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Federal Life Parties, dated as of the Closing Time, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, Agent to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any 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; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Federal Life Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Federal Life Parties independently, or of the Primary Federal Life Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (ivv) each of the Primary Federal Life Parties have has complied in all material respects with all material agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date, Time including the conditions contained in this Section 810; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vivii) no order suspending the ConversionOffering, the Offering Conversion or the use of the Prospectus has been issued and and, to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Department, the Commission, or any other federal or state authority; and (viiviii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving Director with respect to the ConversionConversion Application.
(gd) None Prior to and at the Closing Time, none of the Primary Federal Life Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective Material Adverse Effect that Effect, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(me) At or prior to the Closing DateTime, the Agent Department shall receive: (i) have issued a copy letter or order to Federal Life, which shall have the force of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably requestOffering.
(nf) Subsequent to the date hereof, there shall not have occurred any of the following; : (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority other than temporary trading haltshalts (A) imposed as a result of intraday changes in the Dow J▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks, federally-insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks federally-insured financial institutions declared by either federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shauthoritie
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion Conversion, including the Offering, in all material respects in accordance with the Plan, the Conversion Regulations (except to Regulations, the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), HOLA and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and the Offering imposed upon them by the Federal Reserve Board or any other applicable regulatorAgencies.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been be approved by the Federal Reserve Board Agencies not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board Agencies or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPElias, Matz, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementCompany and the Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing as attached hereto a corporation under the laws of the State of Delaware; the Company is qualified to do business as Exhibit C.a foreign corporation in Texas and in each jurisdiction in which the conduct of its business requires such qualification.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a validly existing Texas chartered savings bank in capital stock form of organization, authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock has been duly authorized, and is validly issued, fully paid and non-assessable and is owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Dallas. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion - Effects of Conversion - Effect on Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Upon consummation of the Offering, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Our Capitalization," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Offering, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC, and savings and loan holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions and their holding companies, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the TSLD and the FDIC and the Prospectus has been authorized for use by the Agencies, and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval. The Holding Company Application has been approved by the OTS and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank.
(ix) Subject to the satisfaction of the conditions to the Agencies' approval of the Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered). To such counsel's Actual Knowledge, the Offering has been consummated in all material respects in accordance with Conversion Regulations and the HOLA, except that no opinion is rendered with respect to (a) the Conversion Application, the Holding Company Application, the Registration Statement or Prospectus, which are covered by other clauses of this opinion, (b) the satisfaction of the post-Offering conditions in the Conversion Regulations or in the Agency approvals of the Conversion Application and the Holding Company Application, (c) the securities or "blue sky" laws of various jurisdictions and (d) At the Closing Date, the Agent shall have received the favorable opinion, dated as rules and regulations of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the AgentNASD.
(ex) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the OfferingCommission.
(xi) At the time the Conversion Application, including Agent’s participation the Prospectus contained therein, shall have been furnished prior was approved by the TSLD and the FDIC, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the mailing requirements of the ProspectusConversion Regulations, Texas and federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered). At the time the Holding Company Application, including the Prospectus contained therein, was approved by the OTS, the Holding Company Application, including the Prospectus contained therein, complied as to form in all material respects with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration requirements of the Shares under Conversion Regulations, Texas and federal law and all applicable state securities rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations, the HOLA and federal law.
(fxiii) At the Closing Date, the Agent shall receive a certificate The terms and provisions of the Chief Executive Officer and the Chief Financial Officer of each Shares of the Primary Parties Company conform, in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Dateall material respects, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given description thereof contained in the Registration StatementStatement and Prospectus, and the General Disclosure Package form of certificate used to evidence the Shares is in due and proper form.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company or the Bank is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement including ordinary routine litigation incidental to the Prospectus that has not been so set forthCompany's or the Bank's business, including specificallyare, but without limitation, any material adverse change considered in the conditionaggregate, financial not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or otherwise, other instruments required to be described or referred to in the earningsConversion Application, capitalthe Holding Company Application, propertiesthe Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, business the Holding Company Application, the Registration Statement or prospects the Prospectus. The description in the Conversion Application, the Holding Company Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvi) To such counsel's Actual Knowledge, the Company and the Bank have conducted the Offering, in all material respects, in accordance with all applicable requirements of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Plan and the conditions set forth in this Section 8 have been satisfied; (iii) the representations applicable Texas and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied federal law. The Plan complies in all material respects with all material agreements applicable Texas and satisfied all conditions on their part to be performed or satisfied at or prior to federal laws, rules, regulations, decisions and orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission TSLD, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending instituted or, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, threatened by the Federal Reserve Board TSLD, the Commission, the FDIC, or any other federal or state authority; authority and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator Agencies, approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and Prospectus, any material loss Conversion Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvii) Prior To such counsel's Actual Knowledge, the Company and the Bank have obtained all material federal licenses, permits and other federal governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of its articles of incorporation, charter and bylaws, as appropriate or, to and at the Closing Date: (i) such counsel's Actual Knowledge, in the reasonable opinion default or violation of the Agentany obligation, there shall agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary Parties considered as one enterpriseCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, from the execution and as delivery of this Agreement, the occurrence of the latest date as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than transactions referred to or contemplated therein; (ii) none the establishment of the Primary Parties shall have received liquidation account); and, such action will not result in any violation of the provisions of the charter or bylaws of the Company or the Bank or, result in any violation of any applicable federal law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the laws of the State of Delaware; the Bank's charter and bylaws comply in all material respects with the rules and regulations of the Agencies.
(xx) To such counsel's Actual Knowledge, neither the Company nor the Bank is in violation of any directive from any Governmental Entity any direction (oral or written) the Agencies to make any material change in the method of conducting their business with which it its respective business.
(xxi) The information in the Prospectus under the captions "Summary," "Risk Factors" (relating to takeover defensive provisions), "Regulation," "The Conversion," "Restrictions on Acquisition of Heritage Bancshares, Inc. and Heritage Savings Bank and Related Anti-Takeover Provisions," "Description of Capital Stock of Heritage Bancshares, Inc." and Description of Capital Stock of Heritage Bank" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has not complied been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none respects. The discussion of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice statutes or lapse of time regulations described or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with accurate summaries and fairly present the 1933 Act, applicable accounting requirements information required to be shown. The information under the caption "The Conversion - Effects of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared - Tax Effects" has been reviewed by such firm complies in all material respects with counsel and fairly describes the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited opinions rendered by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver them to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shBank
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Territorial Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Territorial Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Territorial Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Territorial Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Territorial Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Territorial Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Territorial Parties independently, or of the Primary Territorial Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Territorial Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Territorial Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Territorial Parties, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the best knowledge of the Primary Territorial Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Territorial Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Territorial Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Territorial Parties shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Territorial Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Territorial Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Territorial Parties, threatened against the any of the Primary Territorial Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingTerritorial Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky Blue Sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Territorial Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, KPMG LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, KPMG LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142007, June 302006 and 2005, 2014 and June 30, 2013 and for each of the six months years in the three-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132007, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Territorial Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt borrowings of the Mid-Tier Holding CompanyMHC, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity net assets of the Mid-Tier Holding Company and (B) during the period from MHC at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding CompanyMHC, the accounting system and other data prepared by the Mid-Tier Holding CompanyMHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, KPMG LLP in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP FinancialFinPro, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Territorial Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board OTS evidencing the valid existence of the Bank, the MHC and the Mid-Tier Holding CompanyTerritorial Savings Group; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Seattle evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war war; or (iv) a material decline in the price of equity or debt securities, securities if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Territorial Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Territorial Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Territorial Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementReserve, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPElias, special counsel for the Primary PartiesMatz, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , L.L.P. and/or local counsel acceptable to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable satisfactory to the AgentAgent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and a subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is a subsisting corporation in Pennsylvania and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the Holding Company as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(eii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the OfferingThe Bank is a duly organized and validly existing federally-chartered savings bank, including Agent’s participation therein, shall have been furnished prior to the mailing and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus, to ; the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration activities of the Shares under applicable state securities law.
(f) At Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OCC and the FDIC; and at the Closing Date, the Agent shall receive a certificate issuance and sale of the Chief Executive Officer capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Chief Financial Officer Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect, and the activities of the MHC as described in the Prospectus are permitted by federal law and the rules and regulations of the Federal Reserve.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by the laws of the United States, and with respect to the Holding Company, are also permitted by the laws of the Commonwealth of Pennsylvania and the rules, regulations and practices of the Federal Reserve. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and to such counsel’s knowledge all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of good standing the FHLB of Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and, if applicable, sold in the Public Offeringand delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and, if applicable, the Underwriting Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties who have the corporate power and authority to enter into the Agreement and, if applicable, the Underwriting Agreement, and to perform their obligations thereunder, enforceable in form and substance reasonably satisfactory accordance with its terms, except to the Agent’s Counselextent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, dated as of such Closing Date, except to the effect that: (i) they have carefully examined extent that such enforceability may be limited by bankruptcy, moratorium, reorganization, insolvency, or other laws or judicial decisions affecting the Prospectus andenforcement of creditors’ rights generally, in their opinion, at or the time the Prospectus became authorized for final userights of creditors of savings institutions, the Prospectus did not contain any untrue statement accounts of which are insured by the FDIC, and except to the extent enforcement hereof is subject to general equity principles (either in a material fact proceeding in equity or omit to state a material fact necessary in order to make at law) and laws and judicial decisions regarding the statements thereinavailability of injunctive relief and enforceability of equitable remedies, in light including the remedies of specific performance and self-help.
(ix) The Plan has been duly adopted by the Board of Directors of the circumstances under which they were madeMHC, not misleading; (ii) since the respective dates as Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of which information is given the Mid-Tier Holding Company and the Voting Members in the Registration Statementmanner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the General Disclosure Package Mid-Tier Holding Company, the Holding Company and the Bank.
(x) To such counsel’s knowledge, the Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the Federal Reserve, the Commission, the OCC, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application (including the Plan, the Prospectus, no event has occurred that should the Members’ Proxy Statement, and the Stockholders’ Proxy Statement) and the Holding Company Application have been set forth in an amendment or supplement approved by the Federal Reserve, and subject to the Prospectus that has not been so set forth, including specifically, but without limitation, satisfaction of any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as such approvals, no further approval, registration, authorization, consent or other order of the Closing Date; (iv) any federal or state regulatory agency, public board or body is required to be obtained by the Primary Parties have complied in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The acquisition by the Holding Company of all material respects with all material agreements of the issued and satisfied all conditions on their part outstanding capital stock of the Bank has been authorized by the Federal Reserve, and no action has been taken or is pending or, to be performed such counsel’s knowledge, threatened to revoke any such authorization or satisfied at or prior to approval.
(xiii) The Registration Statement has become effective under the Closing Date1933 Act, including the conditions contained in this Section 8; (v) and no stop order suspending the effectiveness of the Registration Statement has been initiated issued or proceedings for that purpose have been instituted or, to the knowledge of the Primary Partiessuch counsel’s knowledge, threatened by the Commission Commission. Any required filing of the Final Prospectus pursuant to Rule 424(b) or any state authority; (vic) no order suspending has been made in the Conversionmanner and within the time period required by Rule 424.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects.” The information in the Prospectus under the captions “Summary – Federal and State Income Tax Consequences” and “The Conversion and Offering - Tax Aspects” has been reviewed by such counsel and fairly describes the opinions rendered by such counsel and ParenteBeard LLC to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock complies with all statutory requirements.
(xvi) At the time the Applications were approved and as of the Closing Date, the Offering Applications (as amended or supplemented), the use Prospectus (as amended by post-effective amendment or as otherwise or supplemented), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented) (in each case, other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan, as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the Prospectus has been issued Conversion Regulations and no proceedings for that purpose are pending orall applicable laws, to the knowledge rules and regulations and decisions and orders of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary PartiesReserve. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator in approving the ConversionApplications filed with the Federal Reserve.
(gxvii) None At the time that the Registration Statement became effective and as of the Primary Parties shall have sustainedClosing Date, since the date of the latest financial statements included in the Registration Statement, including the General Disclosure Package and ProspectusProspectus (as amended or supplemented) (other than the financial statements, any material loss or interference with its business from firenotes to financial statements, explosion, flood financial tables or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement financial and statistical data included therein and the Prospectus, and since the respective dates as of which information is given in the Registration Statement appraisal valuation and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse business plan as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC 1933 Act and the 1933 Act; Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) stating seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Regulation,” “The Conversion and Offering - Tax Aspects” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights,” “Restrictions on Acquisition of Malvern Bancorp-New,” “Description of our Capital Stock,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States, the State of New York with respect to the opinion as to the enforceability of this Agreement included in paragraph (viii) and the Business Corporation Law of the Commonwealth of Pennsylvania. In rendering such opinion, such counsel may rely (A) during as to matters involving the period from application of laws of any jurisdiction other than the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior United States, to the date extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the ProspectusAgent, except as has been described in long as such other opinion indicates that the ProspectusAgent may rely on the opinion, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date as to matters of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting recordsfact, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect thatcounsel deems proper, on the basis certificates of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each responsible officers of the Primary Parties and consultations with officers public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity Agent together with the 1933 Act, applicable accounting requirements opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of such counsel for the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shsubject
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the AgentAgents, to the condition that all representations and warranties of the Primary HSB Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary HSB Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary HSB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved in writing by the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB, the FDIC, the DFI or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s Agents’ consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary HSB Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the FDIC, the DFI or any other federal or state authority.
(c) At the Closing Date, the Agent Agents shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent Agents and for its their benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.D.
(d) At the Closing Date, the Agent KBW shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent KBW and for its benefit, of ▇▇▇▇▇▇ Price P.C., special counsel for KBW, in form and substance as attached hereto as Exhibit E.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s Agents’ participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent the Agents or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent Agents may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent Agents shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary HSB Parties in form and substance reasonably satisfactory to the AgentKBW’s Counselcounsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary HSB Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the HSB Parties independently, or of the Primary HSB Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary HSB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to best the knowledge of the Primary HSB Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary HSB Parties, threatened by the Federal Reserve Board FDIC, DFI or any other federal or state authority; and (viiviii) to the best knowledge of the Primary HSB Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FDIC, the DFI or any other applicable regulator approving the Conversion.
(g) None of the Primary HSB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s Agents’ reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the AgentAgents, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary HSB Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary HSB Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the AgentAgents) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the HSB Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary HSB Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the best knowledge of the Primary HSB Parties, threatened against the any of the Primary HSB Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have materially and adversely affect the financial condition, results of operations or business of the HSB Parties taken as a Material Adverse Effectwhole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that which prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent Agents shall have reasonably requested and as agreed to by the Primary HSB Parties.
(i) Concurrently with the execution of this Agreement, the Agent Agents shall receive a letter from BDO USA, ▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the AgentAgents: (i) confirming that BDO USA, ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June 30, 2014 and June September 30, 2013 and September 30, 2012, and for the six months ended December 31, 2014 and the fiscal years ended June September 30, 2014 2013 and 2013September 30, 2012 and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB, the FDIC, the DFI and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the HSB Parties and consultations with officers of the HSB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (i) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (AB) during the period from the date of the recent developments financial information latest unaudited interim balance sheet included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding CompanyBank, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company Bank and (BC) during the period from the date of the recent developments financial information latest unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding CompanyBank; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyHSB Parties, which are subject to the internal controls of the Mid-Tier Holding CompanyHSB Parties, the accounting system and other data prepared by the Mid-Tier Holding CompanyHSB Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent Agents may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent Agents shall receive a letter dated the Closing Date, addressed to the AgentAgents, (i) confirming the statements made by BDO USA, ▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary HSB Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent Agents shall receive: (i) a copy of the letters from the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator approving the Conversion Application and the Holding Company Application Application, as applicable, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the order from confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from of appropriate government officials, including the Federal Reserve Board DFI, evidencing the valid existence of the MHC Holding Company and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (viv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent Agents may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s Agents’ reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to KBW shall have been furnished with such documents and opinions as they may reasonably require for the Agent shpurpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the HSB Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agents or KBW’s counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agents or to counsel for KBW. Any certificate signed by an officer of any of the HSB Parties and delivered to the Agents or to counsel for KBW shall be deemed a representation and warranty by such HSB Party to the
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or the FDIC or any other federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇ ▇▇▇▇▇▇, PC, counsel for the Primary Parties, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A. In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus and the Applications and related matters were discussed and, while such counsel has not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ US, LLP, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special counsel mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from accounting records, to the extent specified in such opinion letter, such amounts and/or percentages set forth in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance the Prospectus as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall may reasonably request, and they have received the favorable opinion, dated as of the Closing Date found such amounts and addressed percentages to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, be in form and substance as reasonably acceptable agreement therewith (subject to the Agentrounding).
(e) A blue sky memorandum Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ US, LLP relating dated the date hereof and addressed to the OfferingAgent, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇ US, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇ LLP shall state ▇▇▇▇▇ US, LLP; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of Regal Bancorp prepared by the Regal Parties, a reading of the minutes of the meetings of the Boards of Directors of the Regal Parties and committees thereof and consultations with officers of the Regal Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of Regal Bancorp for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (e), they have compared with the general accounting records of the Regal Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Regal Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawbe in agreement therewith (subject to rounding).
(f) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (f) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(g) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇ US, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(e), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (g) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(h) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement any Material Adverse Effect relating to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Regal Parties considered otherwise than as one enterprise, whether set forth or not arising contemplated in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv4) the Primary Parties and the Regal Parties have complied in all material respects with all material agreements related to the Conversion and the Merger and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the FDIC or any other federal or state authority; and and
(vii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Reserve, the FDIC or any other applicable regulator the Department in approving the ConversionApplications or to enjoin the Conversion or the Merger.
(gj) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(k) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hl) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties considered independently or taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: Parties will have received (i) a copy of the letters letter from the Federal Reserve Board approving the Company Application and any other applicable regulator a copy of the letter from the Federal Reserve approving the FRB Waiver Request; (ii) a copy of the letter from the Department approving the Conversion Application and the Holding Company Application and authorizing the use a copy of the Prospectusletter from the Department approving the New Jersey Merger Application; (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shcopy
Appears in 1 contract
Sources: Agency Agreement (SR Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Blue Hills Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Blue Hills Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Blue Hills Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion BHCA, the Massachusetts Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board FRB and the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Blue Hills Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Blue Hills Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Blue Hills Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit D.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Blue Hills Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Blue Hills Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Blue Hills Parties independently, or of the Primary Blue Hills Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Blue Hills Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Blue Hills Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Blue Hills Parties, threatened by the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority; and (viiviii) to the best knowledge of the Primary Blue Hills Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary Blue Hills Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Blue Hills Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Blue Hills Parties shall have received from any Governmental Entity the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Blue Hills Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Blue Hills Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Blue Hills Parties, threatened against the any of the Primary Blue Hills Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingBlue Hills Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Blue Hills Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAWolf & Co., LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAWolf & Co., LLP P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company MHC as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Blue Hills Parties and consultations with officers of the MHC responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the Division and the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyMHC, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from MHC at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding CompanyMHC, the accounting system and other data prepared by the Mid-Tier Holding CompanyMHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAWolf & Co., LLP P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, Financial LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Blue Hills Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Massachusetts Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order a letter from the Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission that declared the Registration Statement effective; (iiiiv) certificates from the Federal Reserve Board Secretary of State of the Commonwealth of Massachusetts evidencing the valid existence and good standing of the MHC and the Mid-Tier Holding CompanyTier; (ivv) a certificate from the New Jersey Banking Department Division evidencing the good standing of the Bank; (vvi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vivii) a certificate from the FHLB-New York FHLBB evidencing the Bank’s membership therein; (viiviii) a certificate from the Maryland State Department of Assessments and & Taxation evidencing the good standing of the Holding Company; Company and (viiiix) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Blue Hills Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Blue Hills Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Blue Hills Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time OTS and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionOTS, the Federal Reserve Board Commission or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special LLP and/or local counsel for acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit E. The opinion may be limited to matters governed by the laws of the United States and the States of Connecticut and Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States and the State of Maryland, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(e2) A blue sky memorandum from The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that, during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included or omitted from, or statistical or appraisal methodology employed in, the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(4) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(4)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement or the Prospectus, at the time the Registration Statement was declared effective by the Commission and as of the date of such letter, or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP addressed to the Holding Company and the Agent relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) As of the date hereof, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.’s opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and the “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans or non-performing assets, or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for issuance of stock pursuant to stock option plans) at the date of such letter as compared with amounts shown in the December 31, 2010 statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the recent development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final use, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the financial condition, financial or otherwise, or in the earningsresults of operation, capital, properties, properties or business or prospects affairs of the Primary Parties independentlyParties, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, Date including the conditions contained in this Section 810; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge best of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vi) no order suspending the Offering, the Exchange, the Conversion, the Offering acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the use effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board OTS, the Commission, or any other federal or state authority; and (vii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the Primary Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None At the Closing Date, the Agent shall receive a letter from FinPro, Inc., dated as of the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the Exchange or the delivery of the Shares or the Exchange Shares on the terms and in the manner contemplated in the ProspectusProspectus and the Stockholders’ Proxy Statement.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial conditioncondition or in the earnings, results of operations capital, properties or business affairs of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board OTS, the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of Company’s, the Primary PartiesMHC’s, the Mid-Tier Holding Company’s or the Association’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Association’s knowledge, threatened by the CommissionOTS, the Federal Reserve Board SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.received:
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the AgentCompany, the MHC, the Mid-Tier Holding Company and the Association, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing in good standing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Maryland; the MHC is validly existing as a federal mutual holding company under which they were made, not misleadingthe laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a federally-chartered holding company under the laws of the United States of America.
(ii) since Each of the Company, the MHC and the Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given described in the Registration StatementStatement and the Prospectus.
(iii) The Association is a validly existing federally-chartered savings association in stock form duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. When issued in accordance with the Plan, all of the capital stock of the Association to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Association is a member in good standing of the FHLB-Boston. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel’s Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion - Effects of Conversion on Deposits, Borrowers and Members - Effect on Liquidation Rights” and “- Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the General Disclosure Package issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued upon incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the Prospectus that extent payment therefor in cash has not been so set forth, including specifically, but without limitation, any received by the Company. The issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Common Shares conform in all material adverse change respects to the description thereof contained in the condition, financial or otherwise, or in Prospectus. The form of certificate used to evidence the earnings, capital, properties, business or prospects Common Shares complies with the requirements of the Primary Parties independently, or Maryland Business Corporation Act. Upon the issuance of the Primary Parties considered Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as one enterprisemay be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, whether or not arising in the ordinary course of business MHC, the Association and the conditions set forth in Mid-Tier Holding Company have full corporate power and authority to enter into this Section 8 Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been satisfiedduly authorized by all necessary action on the part of the Company, the MHC, the Mid-Tier Holding Company and the Association; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Association, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Association in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the representations safety and warranties in Section 4 are true soundness of insured depository institutions, and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) applicable law or public policy with respect to the Primary Parties indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application and Holding Company Application have been approved by OTS and the Prospectus and Members’ Proxy Statement have declared effective and cleared by the OTS, and no action has been taken or is pending, or to the best of such counsel’s Actual Knowledge, threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan has been approved by the MHC’s members and duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Association.
(ix) Subject to the satisfaction of the conditions to the OTS’ approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the OTC Bulletin Board (as to which no opinion need be rendered).
(x) The Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s Actual Knowledge, threatened by the SEC.
(xi) At the time the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1934 Act Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Conversion Application, we have assumed that the statements made therein are correct and complete.
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law, it being understood, however, that in passing upon the compliance as to form of the Registration Statement and the Prospectus, we have assumed that the statement made therein are correct and complete.
(xiii) To such counsel’s Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xv) The Plan complies in all material respects with all material agreements applicable laws, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and ProspectusConversion Application, any material loss the Holding Company Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvi) Prior to To such counsel’s Actual Knowledge, the Company, the MHC, the Mid-Tier Holding Company and at the Closing Date: Association have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC, the Mid-Tier Holding Company and the Association are in all material respects complying therewith.
(ixvii) in the reasonable opinion To such counsel’s Actual Knowledge, none of the AgentCompany the MHC, there shall the Mid-Tier Holding Company or the Association is in violation of its Certificate of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to such counsel’s Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have been no a material adverse change in impact on the financial condition, condition or results of operations or business of the Primary Parties considered as one enterpriseCompany, from the MHC, the Mid-Tier Holding Company and as the Association on a consolidated basis; the execution and delivery of this Agreement, the incurrence of the latest date as of which such condition is obligations herein set forth and the consummation of the transactions contemplated herein do not (a), to such counsel’s Actual Knowledge, conflict with or constitute a breach of, or default under, or result in the Prospectuscreation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company or the Association pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier Holding Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Mid-Tier Holding Company or the Association are subject (other than transactions referred the establishment of the liquidation account), (b) result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the MHC, the Mid-Tier Holding Company or the Association or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or contemplated therein; the rules or regulations of the NASD and/or OTC Bulletin need be rendered) or order or court order, writ, injunction or decree.
(iixviii) The Company’s Certificate of Incorporation and Bylaws comply in all material respects with the laws of the State of Maryland. The MHC’s, the Mid-Tier Holding Company’s and the Association’s respective Charter and Bylaws comply in all material respects with federal law.
(xix) To such counsel’s Actual Knowledge, none of the Primary Parties shall have received Company, the MHC, the Mid-Tier Holding Company or the Association is in violation of any directive from any Governmental Entity any direction (oral or written) the OTS and the SEC to make any material change in the method of conducting their business with which it its respective business.
(xx) The information in the Prospectus under the captions “Our Dividend Policy,” “Regulation and Supervision,” “Federal and State Taxation,” “The Conversion,” “Restrictions on Acquisition of NEBS Bancshares and Enfield Federal” and “Description of NEBS Bancshares Capital Stock” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has not complied been reviewed by such counsel and is correct in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation respects. The description of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of process in the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom Prospectus under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed caption “The Conversion” to the Agent: (i) confirming extent that BDO USAsuch information constitutes matters of law, LLP is a firm summaries of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form fairly describes such process in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “Recent DevelopmentsThe Conversion - Material Income Tax Consequences” section of has been reviewed by such counsel and fairly describes the Prospectus to a specified date not more than three business days prior opinions rendered by them to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding CompanyMHC, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus Association with respect to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding)matters.
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion prospectus and proxy statement contained in the MHC Notice and Application shall have been approved by the FDIC and the DOBI for mailing prior to the commencement of the Offering, the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreementapproved, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Parties’ ' best knowledge, threatened by the FDIC, the DOBI, the FRB, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Spidi, and/or local counsel for acceptable to the Agent, Agent in form and substance as reasonably acceptable satisfactory to counsel for the Agent to the Agenteffect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of New Jersey, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(eii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating The Bank is a duly organized and validly existing New Jersey chartered mutual savings bank with full power and authority to own its properties and to conduct its business as described in the Offering, including Agent’s participation therein, shall have been furnished prior Prospectus and to enter into this Agreement and perform its obligations hereunder; the mailing activities of the ProspectusBank as described in the Prospectus are permitted by New Jersey law and the rules, regulations and practices of the FDIC and the DOBI; the issuance and sale of the capital stock of the Bank to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state in the Agent may rely. The blue sky memorandum will relate to Reorganization has been duly and validly authorized by all necessary corporate action on the necessity of obtaining or confirming exemptions, qualifications or the registration part of the Shares under applicable state securities lawHolding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(fiii) At The Bank is a member of the FHLB and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
(iv) Upon consummation of the Reorganization, the MHC will have been duly organized and will be validly existing as a mutual holding company under New Jersey law, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date, Date (except for the Agent shall receive a certificate shares issued upon incorporation of the Chief Executive Officer Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and non-assessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and non-assessable; and (d) the issuance of the shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the Chief Financial Officer consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties Parties, enforceable in form and substance reasonably satisfactory accordance with its terms, except to the Agent’s Counselextent that the provisions of Sections l0 and 1 l hereof may be unenforceable as against public policy, dated as of such Closing Date, and except to the effect that: extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (iincluding the laws relating to the rights of the contracting parties to equitable remedies).
(vii) they The Plan has been duly adopted by the board of directors of the Bank and by the members of the Bank, in the manner required by the Conversion Regulations and the Bank's charter and bylaws.
(viii) The Applications have carefully examined been approved by the FDIC, the DOBI and the FRB and the Prospectus and, in their opinion, at and the time the Prospectus became Proxy Statement have been authorized for final use, use by the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package FDIC and the ProspectusDOBI, no event has occurred that should have been set forth in an amendment or supplement and subject to the Prospectus that has not been so set forth, including specifically, but without limitation, satisfaction of any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in Section 4 are true and correct connection with the same force execution and effect as though expressly made at delivery of this Agreement, the offer, sale and as issuance of the Closing Date; Shares and the consummation of the Reorganization.
(ivix) The purchase by the Primary Parties have complied in Holding Company of all material respects with all material agreements of the issued and satisfied all conditions on their part outstanding capital stock of the Bank has been authorized by the FRB and no action has been taken, or, to be performed such counsel's knowledge, is pending or satisfied at threatened, to revoke any such authorization or prior to approval.
(x) The Registration Statement has become effective under the Closing Date1933 Act, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orissued, and, to the knowledge best of the Primary Partiessuch counsel's knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or threatened.
(xi) The material tax consequences of the Reorganization are pending or, set forth in the Prospectus under the caption "The Reorganization and Offering -- Tax Effects of the Reorganization." The information in the Prospectus under the caption "The Reorganization and Offering -- Tax Effects of the Reorganization" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel to the knowledge Primary Parties with respect to such matters.
(xii) The terms and provisions of the Primary Partiesshares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, threatened and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xiii) At the time the MHC Notice and Application was approved, the MHC Notice and Application (as amended or supplemented) including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the FDIC and the DOBI, except as modified or waived in writing by the Federal Reserve Board or any FDIC and/or the DOBI (other federal or state authority; than the financial statements, notes to financial statements, financial tables and (vii) other financial and statistical data included therein and the appraisal valuation as to the knowledge of the Primary Partieswhich counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FDIC, DOBI or any other applicable regulator FRB approving the ConversionApplications.
(gxiv) None of At the Primary Parties shall have sustained, since time that the date of the latest financial statements included in Registration Statement became effective the Registration Statement, including the General Disclosure Package and ProspectusProspectus contained therein (as amended or supplemented) (other than the financial statements, any material loss or interference with its business from firenotes to financial statements, explosion, flood financial tables or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement financial and statistical data included therein and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse appraisal valuation as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the l 933 Act and related published the rules and regulations promulgated thereunder.
(xv) There are no legal or governmental proceedings pending or to the best of such counsel's knowledge, threatened (i) asserting the SEC and the 1933 Act; invalidity of this Agreement or (ii) stating that (A) during seeking to prevent the period from Reorganization or the date offer, sale or issuance of the recent developments financial Shares.
(xvi) The information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to under the date captions "Regulation," "Taxation," "Restrictions on the Acquisition of the Prospectus, except as has been described in Company and the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income Bank -Provisions of the Mid-Tier Holding Company; 's Charter and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance Bylaws -- Authorization of Preferred Stock," "Description of Capital Stock of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system ," and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, "The Reorganization and Offering," to the extent specified in such letterthat it constitutes matters of law, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) summaries of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting legal matters, nothing came to their attention which caused them to believe that: (A) documents or proceedings, or legal conclusions, has been reviewed by such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties counsel and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies accurate in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, except as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating financial statements and other financial data included therein as to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Datewhich such counsel need express no opinion).
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Commissioner, the FDIC, the FRB, the SEC or any other applicable regulatorgovernmental authority.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been Applications approved by the Federal Reserve Board Commissioner and the FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's, the MHC's or the Bank's knowledge, threatened by the CommissionSEC, the Federal Reserve Board Commissioner, the FDIC, the FRB or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Mintz, Levin, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ LLPand Popeo, P.C., special counsel for the Primary PartiesMHC, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementthe Company and the Bank, in the form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shEXHIBIT A.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Sugar Creek Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Sugar Creek Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Sugar Creek Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board FRB and other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Sugar Creek Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the OCC, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, special counsel for the Sugar Creek Parties, which shall also state that Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇, L.L.P. may rely in rendering its opinion pursuant to 8(d), in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇, L.L.P., special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇▇▇ relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇▇▇ shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Sugar Creek Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Sugar Creek Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Sugar Creek Parties independently, or of the Primary Sugar Creek Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Sugar Creek Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Sugar Creek Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Sugar Creek Parties, threatened by the Federal Reserve Board FRB, the FDIC, the OCC or any other federal or state authority; and (viiviii) to the best knowledge of the Primary Sugar Creek Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary Sugar Creek Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Sugar Creek Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Sugar Creek Parties shall have received from any Governmental Entity the FRB, the OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Sugar Creek Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Sugar Creek Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Sugar Creek Parties, threatened against the any of the Primary Sugar Creek Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingSugar Creek Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Sugar Creek Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLP P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December March 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 20132012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Mid-Tier prepared by the Mid-Tier, a reading of the minutes of the meetings of the Boards of Directors of each of the Sugar Creek Parties and consultations with officers of the Mid-Tier responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB, the OCC and the FDIC and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyTier, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyTier, which are subject to the internal controls of the Mid-Tier Holding CompanyTier, the accounting system and other data prepared by the Mid-Tier Holding CompanyTier, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D E hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock common stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(k) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(l) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Sugar Creek Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 163b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board FRB and any other applicable regulator approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board FRB evidencing the valid existence of the MHC and the Mid-Tier Holding CompanyTier; (iv) a certificate from the New Jersey Banking Department OCC evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and & Taxation evidencing the good standing of the Holding Company; Company and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Sugar Creek Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(p) All such opinions, certificates, letters and documents will be in compli
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties MHC, the Company and the Bank, herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties MHC, the Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties MHC, the Company and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion Regulations (except to Reorganization Regulations, the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)laws of Illinois, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion MHC-1/MHC-2 Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ MHC’s, the Company’s or the Bank’s knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The written opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementLLP, counsel for the Company, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.satisfactory to counsel for the Agent, to the effect that:
(di) At the Closing Date, the Agent shall have received Company will be duly organized and validly existing as a federal stock holding company chartered under the favorable opinion, dated as laws of the United States of America.
(ii) At the Closing Date Date, the MHC will be duly organized and addressed validly existing as a federal mutual holding company chartered under the laws of the United States of America.
(iii) The Bank is validly existing as a federal savings bank chartered under the laws of the United States of America and, at the Closing Date, will be duly organized and validly existing in stock form.
(iv) Each of the Company, the MHC and the Bank has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the transactions contemplated hereby.
(v) The Bank has authority to transact its business in the State of Illinois.
(vi) The authorized capital stock of the Company consists of 14,000,000 shares of Common Stock, par value $0.01 per shares, and 1,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are issued and outstanding; immediately upon consummation of the Reorganization and the Offering, all of the issued and outstanding shares of capital stock of the Company owned beneficially and of record by the MHC will be owned free and clear of any security interest, mortgage, pledge, lien or encumbrance; and immediately upon consummation of the Reorganization and the Offering the issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under “Capitalization”.
(vii) Immediately upon consummation of the Reorganization and the Offering, the authorized capital stock of the Bank will consist of 4,000 shares of common stock, par value $1.00 per share, and 1,000 shares of serial preferred stock, par value $1.00 per share; when issued in accordance with the Plan, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued, fully paid and non-assessable and owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien or encumbrance and exempt from registration under the 1933 Act pursuant to Section (3)(a)(5) thereof.
(viii) The Shares have been duly authorized for issuance and sale; the Shares, when issued and delivered by the Company pursuant to the Agent Plan against payment of the consideration calculated as set forth in the Plan, will be validly issued, fully paid and nonassessable.
(ix) The issuance of the Shares is not subject to preemptive rights arising by operation of federal laws and regulations or the Company’s Charter.
(x) To such counsel’s actual knowledge, the Company, the MHC and the Bank have conducted the Offering in accordance with applicable requirements of the OTS Regulations (except to the extent that the requirement to comply therewith was specifically waived by the OTS), the Plan and the letters from the OTS dated February , 2007 approving the MHC-1/MHC-2 Application and declaring the Prospectus effective (which letters, to such counsel’s actual knowledge, are the only such letters received from the OTS relating to the approval of the MHC-1/MHC-2 Application and the effectiveness of the Prospectus), and have satisfied all conditions precedent to the issuance of the Shares imposed upon them by the OTS under the terms of the OTS’s written approval of the MHC-1/MHC-2 Application.
(xi) The Bank is a member in good standing of the Federal Home Loan Bank of Chicago.
(xii) The deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xiii) The OTS has approved the Holding Company Application and the MHC-1/MHC-2 Application; to such counsel’s actual knowledge, such approval remains in full force and effect and no action by the OTS to suspend the effectiveness of such approval or to suspend the Offering is pending or threatened and no person has sought to obtain review of the final action of the OTS in approving the Holding Company Application or the MHC-1/MHC-2 Application; the Holding Company Application and the MHC-1/MHC-2 Application comply as to form in all material respects with the applicable requirements of the application Form H-(e)1-S, Form MHC-1 and Form MHC-2, as the case may be (it being understood, however, that (i) no opinion need be rendered with respect to the financial statements or other financial and statistical data included in, or omitted from, the Holding Company Application or the MHC-1/MHC-2 Application, (ii) in passing upon the compliance as to form of the Holding Company Application and the MHC-1/MHC-2 Application, counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained therein, and (iii) no opinion need be rendered with respect to the business plan or the appraisal report) and, to counsel’s actual knowledge, includes all documents required to be filed as exhibits thereto.
(xiv) The execution and delivery of this Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, (B) will not violate the Charter or bylaws of the Company, the MHC or the Bank and, (C) will not result in a breach of or default, or result in the creation of any lien, charge or encumbrance under any agreement filed as an exhibit to the Registration Statement.
(xv) The Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its benefitterms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of ▇▇▇fraudulent conveyance) or judicial decisions affecting the enforceability of creditors’ rights generally or the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(xvi) The Registration Statement has been declared effective by the Commission under the 1933 Act, and such counsel has been advised by the Commission’s staff that no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for such purpose have been initiated or threatened by the Commission.
(xvii) The Prospectus has been declared effective and the proxy statement has been cleared in advance by the OTS and, such counsel has been advised by the OTS’ staff that no order suspending the effectiveness of the Prospectus or the clearance of the proxy statement has been issued by the OTS and no proceedings for such purpose have been initiated or threatened by the OTS.
(xviii) No further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement the issuance of the Shares pursuant to the Plan, except as may be required under the securities or “Blue Sky” laws of various jurisdictions as to which no opinion need be rendered.
(xix) At the time the Registration Statement became effective, the Registration Statement complied as to form in all material respects with the applicable requirements under the 1933 Act and the 1933 Act Regulations; it being understood, however, that (i) no opinion need be rendered with respect to the financial statements or other financial and statistical data included in, or omitted from, the Registration Statement and (ii) in passing upon the compliance as to form of the Registration Statement, such counsel may assume that the statements made therein are correct and complete, except as otherwise set forth in paragraph (xxii).
(xx) The form of certificate used to evidence the Common Stock complies with the requirements of federal laws and regulations.
(xxi) To such counsel’s actual knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC or the Bank which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xxii) The statements in the Prospectus under the captions “Risk Factors – Risks Related to this Offering –” “– Sugar Creek MHC’s majority control of our common stock will enable it to exercise voting control over most matters put to a vote of stockholders and will prevent stockholders from forcing a sale or a second-step conversion transaction you may find advantageous,” “– Office of Thrift Supervision policy on remutualization transactions could prevent acquisition of Sugar Creek Financial, which may adversely effect our stock price,” “– There may be a limited market for our common stock, which may adversely affect our stock price,” “Our Dividend Policy,” “Regulation and Supervision,” “Federal and State Taxation,” “The Reorganization and Stock Offering,” “Restrictions on Acquisition of Sugar Creek Financial,” and “Description of Sugar Creek Financial Capital Stock” insofar as they purport to summarize matters of law or to describe documents referred to therein, are accurate summaries and descriptions in all material respects.
(xxiii) To such counsel’s actual knowledge, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits thereto that are not described or filed, and no default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any material obligation, agreement or covenant contained in any contract or document so described or filed.
(xxiv) The Plan has been duly authorized by all necessary corporate action by the Company and the Bank.
(xxv) To such counsel’s actual knowledge, the Company, the MHC and the Bank in stock form are currently not in violation of their respective charters and bylaws.
(xxvi) The Company is not and, after giving effect to the offer and the sale of the Shares and the application of the net proceeds as described in the Prospectus under the caption “Use of Proceeds”, will not be, required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP, in addition, to giving the opinions required above, shall state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Date, included or includes an untrue statement of a material fact or omitted or omits 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. In giving their opinions, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP may rely as to matters of fact on certificates of officers and directors of the Company, special counsel for the Agent, in form MHC and substance as reasonably acceptable to the AgentBank and certificates of public officials.
(ed) A blue sky memorandum Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP relating to the Offering, including Agent’s participation therein, shall have been and should be furnished prior to the mailing of the Prospectus, to the Holding Company Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Parties Company, the MHC or the Bank and the conditions set forth in this Section 7 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company, the MHC or the Bank independently, or of the Primary Parties Company, the MHC and the Bank considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Savings Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Savings Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Savings Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or OTS, the FDIC, the Commission and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application approved by the OTS, and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's and the Savings Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its their benefit, of Vorys, Sate▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Peas▇ ▇▇▇, counsel for the Company and the Savings Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Ohio and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Company is qualified to do business as a foreign corporation in Kentucky and in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the financial condition, results of operations, assets, properties or business of the Company.
(ii) The Savings Bank is a validly existing federal savings bank in the mutual form of organization under the laws of the United States of America and, upon the consummation of the Conversion, shall be a validly existing federal savings bank in the capital stock form of organization under the laws of the United States, in both instances with full corporate power and authority to conduct its business and own its property as described in the Registration Statement and Prospectus; and upon consummation of the Conversion, all of the issued and outstanding capital the stock of the Savings Bank shall be duly authorized and, upon payment therefor, shall be validly issued, fully paid and non-assessable, and all such capital stock shall be owned of record and, to such counsel's knowledge beneficially by the Company free and clear of any liens, encumbrances or claims.
(iii) The Savings Bank is a member of the FHLB-Cincinnati; the deposit accounts of the Savings Bank are insured by the FDIC under the SAIF up to the maximum amount allowed under law; and, to such counsel's knowledge, no proceedings for the termination or revocation of such membership or insurance are pending or threatened.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company shall be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Company, no shares of Common Stock have been issued prior to the Closing Date; upon consummation of the Conversion, the Shares subscribed for pursuant to the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, shall be duly and validly issued, fully paid and non-assessable, except that Shares purchased by the ESOP with funds borrowed from the Company are not fully paid to the extent payment therefor in cash has not been received by the Company; except for subscription rights granted pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights; the terms and provisions of the Shares conform to the description thereof contained in the Prospectus; and the form of certificate used to evidence the Common Stock complies with applicable law. To such counsel's knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. Char▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on ompany Page 21
(v) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus and the proxy statement of the Savings Bank has been authorized for use by the OTS; and no action is pending or, to such opinion in rendering its opinion pursuant counsel's knowledge, threatened to Section 8(drevoke any such authorizations or approvals.
(vi) The execution and delivery of this AgreementAgreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Savings Bank; and this Agreement is a valid and binding obligation of the Company and the Savings Bank, enforceable against the Company and the Savings Bank in form accordance with its terms, except as the enforceability thereof may be limited (a) by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and substance as attached hereto as Exhibit C.
their holding companies, (b) by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, (c) by laws relating to the safety and soundness of insured depository institutions or (d) At by applicable law or public policy with respect to the Closing Dateindemnification and contribution provisions contained herein, including without limitation the Agent shall have received the favorable opinion, dated as provisions of Sections 23A and 23B of the Closing Date Federal Reserve Act.
(vii) The execution, delivery and addressed performance of this Agreement and the incurrence of the obligations set forth herein by the Company and the Savings Bank do not (a) result in any violation of any applicable law or regulation (except that no opinion need be rendered with respect to the Agent Blue Sky Laws of various jurisdictions), (b) conflict with or violate the articles of incorporation and for its benefitbylaws of the Company or the charter and bylaws of the Savings Bank in mutual or stock form, or (c) to such counsel's knowledge, constitute a breach of, or default under (or an event which, with notice or lapse of ▇▇▇▇▇▇▇time or both, would constitute a default under), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Savings Bank or the Company pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Savings Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Savings Bank is subject that, individually or in the aggregate would have a material adverse effect on the financial condition, results of operations or business of the Company and the Savings Bank.
(viii) The Plan has been duly adopted by the vote of the directors of the Savings Bank as required by the Conversion Regulations and, based upon the certificate of the inspectors of election, approved by the eligible voting members Char▇▇▇ ▇▇▇▇ & ▇ompany Page 22 of the Savings Bank in accordance with the Conversion Regulations and the Savings Bank's charter and bylaws.
(ix) Subject to the satisfaction of the conditions to the OTS approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any governmental agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the Blue Sky Laws of various jurisdictions or the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness has been issued or proceedings therefor initiated or, to such counsel's knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein (other than the financial statements, the notes thereto, financial tables, and other financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the Conversion Regulations.
(xii) At the time that the Registration Statement became effective, the Registration Statement, including the Prospectus (other than the financial statements, the notes thereto, financial tables, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or the Savings Bank or principals of the Company or the Savings Bank that are required to be disclosed in the Registration Statement and the Prospectus other than those disclosed therein .
(xiv) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits to the Registration Statement or the Conversion Application other than those described or referred to therein or filed as exhibits thereto; the descriptions in the Conversion Application, the Char▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for ompany Page 23 Registration Statement and the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing Prospectus of the Prospectuscontracts, to the Holding Company with a copy thereof addressed to Agent indentures, mortgages, loan agreements, notes, leases or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated other instruments filed as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 exhibits thereto are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied accurate in all material respects with and fairly present the information required to be shown.
(xv) To such counsel's knowledge, the Company and the Savings Bank have conducted the Conversion in all material agreements respects in accordance with the Plan, the Conversion Regulations and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including HOLA; the conditions contained in this Section 8Plan complies with the HOLA and the Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orissued by the OTS, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending instituted or, to the knowledge of the Primary Partiessuch counsel's knowledge, threatened by the Federal Reserve Board or any other federal or state authoritythreatened; and (vii) and, to the knowledge of the Primary Partiessuch counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the Conversion Application, the Holding Company Application or the Prospectus.
(gxvi) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementTo such counsel's knowledge, the General Disclosure Package Company and Prospectusthe Savings Bank have obtained all licenses, any material loss or interference with its business from fire, explosion, flood or permits and other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than authorizations currently required for the conduct of their respective businesses as set forth described in the Registration Statement and the Prospectus, and since except for licenses, approvals or authorizations the respective dates as failure of which information is given to have would not result in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no a material adverse change in the financial condition, results of operations operation or the business of the Primary Parties considered Company and the Savings Bank, taken as one enterprisea whole, from and, to such counsel's knowledge, all such licenses, permits and as of other governmental authorizations are in full force and effect, and, to such counsel's knowledge, the latest date as of which such condition is set forth in Company and the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied Savings Bank are in all material materials respects complying therewith.
(which directionxvii) To such counsel's knowledge, if anyneither the Company nor the Savings Bank is in violation of its articles of incorporation and bylaws, shall have been disclosed or charter and bylaws, respectively, nor, to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been such counsel's knowledge, in default (nor shall an has any event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision in the performance or observance of any agreement obligation, agreement, covenant or instrument relating to condition contained in any material outstanding indebtedness; contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Savings Bank is a party or by which the Company, the Savings Bank or any of their property may be bound in any respect that would have a material adverse effect upon the financial condition, results of operations or business of the Company and the Savings Bank, taken as a whole.
(ivxviii) To such counsel's knowledge, neither the Company nor the Savings Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its business. Char▇▇▇ ▇▇▇▇ & ▇ompany Page 24
(xix) The information in the Prospectus under the captions "Regulation," "The Conversion," "Certain Restriction on Acquisition of the Company," "Taxation," and "Description of Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate and complete in all material respects. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Company and the Savings Bank and certificates of public officials. All references to "to such counsel's knowledge" in such opinion shall refer to the actual and conscious awareness of facts or other information of the individual Vorys, Sate▇, ▇▇▇▇▇▇▇ ▇▇▇ Peas▇ ▇▇▇ attorneys who have been actively involved in the transactions contemplated by this Agreement or the preparation of such opinion. For purposes of such opinion, no actionproceedings shall be deemed to be pending, suit no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Savings Bank, or their counsel, shall have received a copy of such proceedings, order, stop order or action and such counsel need not regard any litigation or governmental proceeding to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company or the Savings Bank or to such counsel, a present intention to initiate such litigation or proceeding. Such counsel may assume that any agreement is the valid and binding obligation of any parties to such agreement other than the Company or the Savings Bank. In addition, at law or in equity or before or by any federal or state commissionsuch counsel shall provide a letter stating that during the preparation of the Registration Statement, board or other administrative agency, not disclosed in Conversion Application and the Prospectus, shall be pending or, to the knowledge such counsel participated in conferences with certain officers and other representatives of the Primary PartiesSavings Bank and the Company, threatened against any representatives of the Primary Parties or affecting any of their properties wherein an unfavorable decisionAgent, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed counsel to the Agent, (i) confirming representatives of the independent public accountants for the Savings Bank and the Company at which the contents of the Registration Statement, the Conversion Application and the Prospectus and related matters were discussed and, although they are not passing upon and do not assume the responsibility for the accuracy, completeness or fairness of the statements made by BDO USA, LLP contained in the letter delivered by it pursuant to subsection (i) of this Section 8Registration Statement, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date Conversion Application and (ii) stating in effect thatProspectus, on the basis of certain agreed upon procedures the foregoing (but not an audit in accordance with standards relying as to factual matters on certificates of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared officers and other factual representations by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shSa
Appears in 1 contract
Sources: Agency Agreement (Columbia Financial of Kentucky Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion Regulations (except to laws, regulations and policies of the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)State of Wisconsin, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board or any other applicable regulatorDepartment, the FRB and the FDIC.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Reorganization Application and the Holding Company Application shall have been approved by the Federal Reserve Board Department, the FDIC and FRB, respectively, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ knowledgeknowledge of the Company or the Bank, threatened by the Commission, the Federal Reserve Board Department, the FRB, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇Q▇▇▇▇▇▇ & ▇▇▇▇B▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing DateCompany, the Agent shall receive a certificate of the Chief Executive Officer MHC and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing DateBank, to the effect that: :
(i) they have carefully examined The Company has-been duly incorporated as a corporation and the Prospectus and, in their opinion, at MHC has been duly incorporated as a mutual holding company and both are validly existing under the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Wisconsin.
(ii) since The Bank, the respective dates Company and the MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package Statement and the Prospectus.
(iii) The Bank is a validly existing Wisconsin-chartered savings bank in capital stock form of organization, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Reorganization will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Chicago. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no event has occurred that should have been proceedings for the termination or revocation of such insurance are pending or to such counsel’s actual knowledge, threatened.
(v) Immediately following the consummation of the Reorganization, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in under the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption “Capitalization,” and the conditions set forth in this Section 8 no Common Shares have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; at the time of the Reorganization, the Common Shares subscribed for pursuant to the Offering and the Charitable Foundation Shares will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable by the Company, subject to the personal liability which may be imposed on shareholders by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted, for debts owing to employees for services performed, but not exceeding six months service in any one case, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares and the Charitable Foundation Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel’s actual knowledge, the Common Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Bank.
(vi) The Bank, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the funding of the Charitable Foundation have been duly and validly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the Primary Parties have indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Reorganization Application has been approved by the Department and the FDIC. The FRB has approved the Holding Company Application and no action has been taken, and none is pending or to such counsel’s actual knowledge threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank. No vote of corporators is required to approve the Reorganization or the funding of the Charitable Foundation.
(ix) Subject to the satisfaction of the conditions to the Department’s and the FDIC’s approval of the Reorganization and the FRB’s approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares, the issuance of the Charitable Foundation Shares and the consummation of the Reorganization, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel’s actual knowledge, threatened by the Commission.
(xi) At the time the Reorganization Application, including the Prospectus contained therein, was approved by the Department and the FDIC, the Reorganization Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the laws, regulations and policies of the State of Wisconsin and the FDIC, except as waived in writing or modified by the Department or the FDIC (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and the business plan included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (iii) any marketing material to be used following the time the Registration Statement becomes effective will comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares complies with applicable laws.
(xiv) There are no legal or governmental proceedings pending or to the actual knowledge of such counsel, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel’s actual knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Reorganization Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Reorganization Application, the Registration Statement or the Prospectus. The description in the Reorganization Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown therein.
(xvi) The Plan complies in all material respects with all material agreements applicable federal law, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Control Act Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission Department, the Commission, the FRB, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, instituted or to the such counsel’s actual knowledge of the Primary Parties, threatened by the Federal Reserve Board Department, the Commission, the FRB, the FDIC, or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel’s actual knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator Department approving the ConversionPlan, the Reorganization Application, the Holding Company Application or the Prospectus. No vote of corporators was required to approve or adopt the Plan.
(gxvii) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementTo such counsel’s actual knowledge, the General Disclosure Package Company, the MHC and Prospectusthe Bank have obtained all licenses, any material loss or interference with its business from fire, explosion, flood or permits and other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than authorizations currently required for the conduct of their businesses as set forth described in the Registration Statement and the Prospectusall such licenses, permits and other governmental authorizations are in full force and effect, and since to such counsel’s actual knowledge the respective dates Company, the MHC and the Bank are in all material respects complying therewith.
(xviii) None of the MHC, the Company nor the Bank is in violation of its Charter and Bylaws or its Articles of Incorporation, and Bylaws, as appropriate, or, to such counsel’s actual knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which information it is given a party or by which it or its property may be bound, except for such defaults or violations which would not materially and adversely affect the financial condition or results of operations of the MHC, and the Company and the Bank taken as a whole; to such counsel’s actual knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Registration Statement creation or imposition of any lien, charge or encumbrance upon any property or assets of the MHC, the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject (other than the establishment of the liquidation account) except where failing such would not materially and adversely affect the financial condition or results of operations of the MHC, or the Company and the ProspectusBank taken as a whole, there shall and such action will not have been result in any Material Adverse Effect violation of the provisions of the Charter or Bylaws of the Company or MHC, or the Articles of Incorporation, or the Bylaws of the Bank, or result in any violation of any applicable federal or state law, act, regulation (except that is no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company’s Charter and Bylaws comply in the Agent’s reasonable judgment sufficiently all material and adverse as to make it impracticable or inadvisable to proceed respects with the Offering or the delivery laws of the Shares on State of Wisconsin. The MHC’s Charter and Bylaws comply in all material respects with the laws of the State of Wisconsin. The Bank’s Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Wisconsin.
(xx) The Charitable Foundation is validly existing as a non-stock corporation under the laws of the State of Wisconsin; to the knowledge of counsel, the Charitable Foundation is not a bank holding company within the meaning of the BHCA as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the manner contemplated amounts as described in the Prospectus.
(hxxi) Prior to and at the Closing Date: (i) The information in the reasonable opinion Prospectus under the captions “Supervision and Regulation,” “The Reorganization and Stock Offering,” “Restrictions on Acquisition of Wauwatosa Holdings and Wauwatosa Savings Bank,” “Waukesha County Community Foundation, Inc.” and “Description of Capital Stock of Wauwatosa Holdings, Inc.,” to the Agentextent that such information constitutes matters of law, there shall have summaries of legal matters, documents or proceedings, or legal conclusions, has been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from reviewed by such counsel and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied correct in all material respects (which direction, if any, shall have been disclosed respects. The description of the Reorganization process in the Prospectus under the caption “The Reorganization and Stock Offering” to the Agent) extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form fairly describes such process in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to a specified date not more than three business days prior be shown. The information under the caption “The Reorganization and Stock Offering—Federal and State Tax Consequences of the Reorganization” has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by them to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system MHC and other data prepared by the Mid-Tier Holding Company, directly from Bank with respect to such accounting records, to the extent specified in such lettermatters. In addition, such amounts and/or percentages set forth in counsel shall state that during the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards preparation of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing DateReorganization Application, the Holding Company shall receive a letter from RP FinancialApplication, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Association's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPElias, special counsel for the Primary PartiesMatz, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, L.L.P., special counsel for the Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.:
(i) Concurrently with The Company has been duly incorporated and is validly existing as a corporation under the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as laws of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm state of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; Louisiana.
(ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus The Company has corporate power and authority to a specified date not more than three own, lease and operate its properties and to conduct its business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(oiii) At The Association has been duly organized and is a validly existing Louisiana chartered savings association in capital stock form of organization, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Association upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Association has no subsidiaries.
(v) The Association is a member of the FHLB-Dallas. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion and Reorganization-Effect on Liquidation Rights" and "- Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and, no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, counsel the Shares subscribed for pursuant to the Agent shOffering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
Appears in 1 contract
Sources: Agency Agreement (Gs Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary HSB Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary HSB Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary HSB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved in writing by the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB, the FDIC, the DFI or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary HSB Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the FDIC, the DFI or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇ Price P.C., special counsel for the Agent, in form and substance as attached hereto as Exhibit C .
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary HSB Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary HSB Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the HSB Parties independently, or of the Primary HSB Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary HSB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to best the knowledge of the Primary HSB Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary HSB Parties, threatened by the Federal Reserve Board FDIC, DFI or any other federal or state authority; and (viiviii) to the best knowledge of the Primary HSB Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FDIC, the DFI or any other applicable regulator approving the Conversion.
(g) None of the Primary HSB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior ▇▇▇▇▇ to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary HSB Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary HSB Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the HSB Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary HSB Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the best knowledge of the Primary HSB Parties, threatened against the any of the Primary HSB Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have materially and adversely affect the financial condition, results of operations or business of the HSB Parties taken as a Material Adverse Effectwhole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that which prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary HSB Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, ▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June September 30, 2014 2012 and June September 30, 2013 2011, and for the six months ended December 31, 2014 and the fiscal years ended June September 30, 2014 2012 and 2013September 30, 2011 and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB, the FDIC, the DFI and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the HSB Parties and consultations with officers of the HSB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (i) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, the FDIC and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (AB) during the period from the date of the recent developments financial information latest unaudited interim balance sheet included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding CompanyBank, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company Bank and (BC) during the period from the date of the recent developments financial information latest unaudited interim balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding CompanyBank; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyHSB Parties, which are subject to the internal controls of the Mid-Tier Holding CompanyHSB Parties, the accounting system and other data prepared by the Mid-Tier Holding CompanyHSB Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, ▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial▇▇▇▇▇▇ & Company, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary HSB Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board FRB, the FDIC, the DFI and any other applicable regulator approving the Conversion Application and the Holding Company Application Application, as applicable, and authorizing the use of the Prospectus, as applicable; (ii) a copy of the order from confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from of appropriate government officials, including the Federal Reserve Board DFI, evidencing the valid existence of the MHC Holding Company and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (viv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the HSB Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the HSB Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such HS
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to Regulations, the extent waived or otherwise approved by the Federal Reserve Board applicable laws of Delaware and any other applicable regulator)Illinois, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOffice and the FDIC.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board Office and the Notice not objected to by the FDIC not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board Office, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇Luse Lehman Gorman Pomere▇▇ & ▇▇▇▇▇▇, ▇.▇., special co▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementfor the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Delaware.
(ii) since the respective dates The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as of which information is given described in the Registration Statement, the General Disclosure Package Statement and the Prospectus.
(iii) The Bank is a validly existing Illinois chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing Illinois chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Chicago. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel's Actual Knowledge, no event has occurred that should have been proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in an amendment or supplement the Prospectus under the caption "The Conversion--Effects of Conversion to Stock Form on Depositors and Borrowers of Clover Leaf Bank--Effect on Liquidation Rights," to the Prospectus extent that such information constitutes matters of law and legal conclusions, has not been so set forth, including specifically, but without limitation, any reviewed by such counsel and is accurately described in all material adverse change in respects.
(v) Immediately following the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects consummation of the Primary Parties independentlyConversion, or the authorized, issued and outstanding Common Shares of the Primary Parties considered as one enterprise, whether or not arising in Company will be within the ordinary course of business and the conditions range set forth in this Section 8 the Prospectus under the caption "Capitalization," and no Common Shares have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the Primary Parties have indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the Office and the Prospectus has been authorized for use by the Office. The FRB has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and to such counsel's Actual Knowledge, no action has been taken, and none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank.
(ix) Subject to the satisfaction of the conditions to the Office's approval of the Conversion, the FDIC's non-objection to the Conversion and the FRB's approval of the Holding Company application, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the Office, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Office Regulations (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time of the Notice, including the Prospectus contained therein, was not objected to by the FDIC, the Notice, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the FDIC Regulations (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xv) To the Actual Knowledge of such counsel, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xvi) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Notice, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Notice, the Registration Statement or the Prospectus. The description in the Conversion Application, the Notice, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvii) The Plan complies in all material respects with all material agreements applicable federal and satisfied all conditions on their part Illinois law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to be performed or satisfied at or prior to such counsel's Actual Knowledge, the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement Conversion has been initiated oreffected by the Company and the Bank in all material respects in accordance with the Conversion Regulations and applicable Office, FDIC and FRB approvals or letters of non-objection issued thereunder; to such counsel's Actual Knowledge, no order has been issued by the knowledge of Office, the Primary PartiesFDIC , threatened by the FRB, the Commission or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, instituted or threatened by the Federal Reserve Board Office, the FDIC, the FRB, the Commission or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Office, the FDIC or any other applicable regulator the FRB, as the case may be, approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and ProspectusConversion Application, any material loss the Holding Company Application, Notice or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxviii) Prior to To such counsel's Actual Knowledge, the Company and at the Closing Date: (i) Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the reasonable opinion of Company and the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied Bank are in all material respects complying therewith.
(which directionxix) Neither the Company nor the Bank is in violation of its Certificate of Incorporation and Bylaws or its Articles of Incorporation and Bylaws, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending as appropriate or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the knowledge financial condition or results of operations of the Primary PartiesCompany and the Bank on a consolidated basis; to such counsel's Actual Knowledge, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution and delivery of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as incurrence of the date hereof obligations herein set forth and addressed the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than the establishment of the liquidation account); and such action will not result in any violation of the provisions of the Certificate of Incorporation or Bylaws of the Company or the Articles of Incorporation or the Bylaws of the Bank or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the Agent: (i) confirming that BDO USA, LLP is a firm securities and blue sky laws of independent registered public accountants within various jurisdictions or the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and or regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to NASD need be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”rendered) or in the over-the-counter marketorder or court order, writ, injunction or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectusdecree.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary West End Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary West End Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary West End Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board FRB and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board FRB and other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary West End Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the OCC, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇ & Taff, LLP, special counsel for the Agent, in form and substance as attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary West End Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary West End Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the West End Parties independently, or of the Primary West End Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary West End Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary West End Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary West End Parties, threatened by the Federal Reserve Board FRB, the OCC or any other federal or state authority; and (viiviii) to the best knowledge of the Primary West End Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB or any other applicable regulator approving the Conversion.
(g) None of the Primary West End Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary West End Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary West End Parties shall have received from any Governmental Entity the FRB, the OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the West End Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary West End Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary West End Parties, threatened against the any of the Primary West End Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingWest End Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary West End Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USABKD, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USABKD, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company MHC as of June 30, 2011 and December 31, 20142010 and 2009, and for the three months ended June 30, 2014 2011 and June 30, 2013 and 2010 each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC FRB and any other applicable regulator and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the West End Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the FRB and the OCC and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding CompanyMHC, the accounting system and other data prepared by the Mid-Tier Holding CompanyMHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USABKD, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary West End Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board FRB and any other applicable regulator approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from confirmation that the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board OTS evidencing the valid existence of the MHC and the Mid-Tier Holding CompanyTier; (iv) a certificate from the New Jersey Indiana Department of Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York Indianapolis evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and & Taxation evidencing the good standing of the Holding Company; Company and (viii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the West End Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the West End Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such West End Party to the Agent as to the statements made therein.
Appears in 1 contract
Sources: Agency Agreement (West End Indiana Bancshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Madison Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Madison Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Madison Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulatorFRB), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorFRB to the reasonable satisfaction of Agent and its counsel.
(b) The Registration Statement shall have been declared effective by the Commission and SEC, the Conversion Application shall have been approved by the FRB, and the Holding Company Application shall have been approved by the Federal Reserve Board FRB not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Madison Parties’ knowledge, threatened by the CommissionSEC, the Federal Reserve Board FRB or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Madison Parties, in form and substance satisfactory to the Agent and its counsel, as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P., special counsel for the Agent, in form and substance satisfactory to the Agent, as attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Madison Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Madison Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Madison Parties independently, or of the Primary Madison Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Madison Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Madison Parties, threatened by the Commission SEC or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Madison Parties, threatened by the Federal Reserve Board SEC, the FRB or any other federal or state authority; and (viiviii) to the knowledge of the Primary Madison Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator FRB approving the ConversionPlan or the FRB approving the Holding Company Application.
(g) None of the Primary Madison Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, (i) there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Madison Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Madison Parties shall have received from any Governmental Entity the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Madison Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Madison Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Madison Parties, threatened against the any of the Primary Madison Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingMadison Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Madison Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USABKD, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USABKD, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142011 and 2010, June 30, 2014 and June 30, 2013 and for each of the six months years in the three-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132011, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act, and related published rules and regulations of the SEC and the 1933 ActFRB; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Madison Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act, the 1934 Act related published rules and regulations of the SEC, the FRB and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Companytotal borrowings, other than normal deposit fluctuations for the MidBank, non-Tier Holding Companyperforming assets, or decreases classified loans of the Bank; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits deposits, loans receivable (net), or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described ; or (D) there was any decrease in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in net income or total interest income, income or net interest income, income or net interest income after provision for loan losses, non-interest income before income tax or increase in provision for loan losses or non-interest expense or net income of the Mid-Tier Holding CompanyBank, on a consolidated basis, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus, any Permitted Free Writing Prospectus and any prospectus supplement, as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USABKD, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Madison Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator FRB approving the Conversion Application and the Holding Company Application Application, and authorizing the use of the Prospectus; (ii) a copy of the letter from the FRB approving the Holding Company Application; (iii) a copy of the order from the Commission that declared SEC declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate of good standing from the New Jersey Banking Department State of Maryland evidencing the good standing of the Holding Company; (v) a certificate of good standing from the OCC evidencing the good standing of the Bank; (vvi) a certificate from the FRB evidencing the good standing of the MHC and the Mid-Tier; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viviii) a certificate from the FHLB-New York Topeka evidencing the Bank’s membership therein; (viiix) a certificate of good standing from the Maryland State Department of Assessments and Taxation Nebraska evidencing the good standing of the Holding CompanySubsidiary; and (viiix) such other documents a certified copy of each of the Holding Company’s, the MHC’s, the Mid-Tier’s, the Bank’s and certificates as the Agent may reasonably requestSubsidiary’s Articles of Incorporation and Bylaws.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission SEC or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, the Agent and counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Madison Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All opin
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Offering are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and prospectus contained in the Holding Company Application MHC-2 shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on OTS for mailing prior to the date commencement of this Agreementthe Offering, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ ' best knowledge, threatened by the OTS, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant , P.C., and/or local counsel acceptable to Section 8(d) of this Agreement, the Agent in form and substance satisfactory to counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing under the federal laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as attached hereto described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) The Bank is a duly organized and validly existing federally chartered stock savings bank with full power and authority to own its properties and to conduct its business as Exhibit C.described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the OTS.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings bank holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, all such licenses, permits and other governmental authorization are in full force and effect, and the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
(v) The MHC is duly organized and validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon the Bank's reorganization into the mutual holding company form of organization); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) At the Closing Date, the Agent shall have received the favorable opinion, dated as issuance of the Closing Date and addressed shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the Agent and for its benefitbest knowledge of such counsel, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPunder any contract, special counsel indenture, agreement, instrument or other document, except for the Agent, in form and substance as reasonably acceptable to subscription rights under the AgentPlan.
(evii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to The execution and delivery of this Agreement and the Offering, including Agent’s participation therein, shall consummation of the transactions contemplated hereby have been furnished prior to duly authorized by all necessary corporate action on the mailing part of the ProspectusPrimary Parties; and this Agreement constitutes a valid, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer legal and the Chief Financial Officer binding obligation of each of the Primary Parties Parties, enforceable in form and substance reasonably satisfactory accordance with its terms, except to the Agent’s Counselextent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, dated as of such Closing Date, and except to the effect that: extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (i) they have carefully examined including the Prospectus and, in their opinion, at laws relating to the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light rights of the circumstances under which they were made, not misleading; contracting parties to equitable remedies).
(iiviii) since The Plan has been duly adopted by the respective dates as boards of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects directors of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business manner required by the Conversion Regulations.
(ix) The MHC-2 has been approved by the OTS and the Prospectus has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in this Section 8 have been satisfied; (iii) the representations such OTS approvals and warranties clearance under applicable securities laws, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in Section 4 are true and correct connection with the same force execution and effect as though expressly made at delivery of this Agreement, the offer, sale and as issuance of the Closing Date; Shares and the consummation of the Offering.
(ivx) The Registration Statement has become effective under the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date1933 Act, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orissued, and, to the knowledge best of the Primary Partiessuch counsel's knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or threatened.
(xi) The material tax consequences of the Offering are pending or, set forth in the Prospectus under the caption "Summary - Tax Consequences of the Offering." The information in the Prospectus under the caption "Summary - Tax Consequences of the Offering." has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP to the knowledge Primary Parties with respect to such matters.
(xii) The terms and provisions of the Primary Partiesshares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, threatened and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xiii) At the time the MHC-2 was approved, the MHC-2 (as amended or supplemented) including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the Federal Reserve Board or any OTS (other federal or state authority; than the financial statements, notes to financial statements, financial tables and (vii) other financial and statistical data included therein and the appraisal valuation as to the knowledge of the Primary Partieswhich counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionMHC-2.
(gxiv) None of At the Primary Parties shall have sustained, since time that the date of the latest financial statements included in Registration Statement became effective the Registration Statement, including the General Disclosure Package and ProspectusProspectus contained therein (as amended or supplemented) (other than the financial statements, any material loss or interference with its business from firenotes to financial statements, explosion, flood financial tables or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement financial and statistical data included therein and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse appraisal valuation as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agentwhich counsel need express no opinion), there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and related published the rules and regulations promulgated thereunder.
(xv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the SEC and the 1933 Act; invalidity of this Agreement or (ii) stating that (A) during seeking to prevent the period from Offering or the date offer, sale or issuance of the recent developments financial Shares.
(xvi) The information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to under the date captions "Supervision and Regulation," "Federal and State Taxation," "Restrictions on the Acquisition of the ProspectusColonial Bankshares, except as has been described in the ProspectusInc. and Colonial Bank, there were any decreasesFSB," "Description of Capital Stock of Colonial Bankshares, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; Inc.," and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, "The Offering" to the extent specified in such letterthat it constitutes matters of law, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) summaries of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting legal matters, nothing came to their attention which caused them to believe that: (A) documents or proceedings, or legal conclusions, has been reviewed by such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties counsel and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies accurate in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, except as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating financial statements and other financial data included therein as to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Datewhich such counsel need express no opinion).
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Offering in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)MHC Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion MHC Application and the Holding Company Application MHC Notice shall have been be approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's, the MHC's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, special counsel for the Company, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.:
(i) Concurrently with The Company has been duly incorporated and is validly existing as a corporation under the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as laws of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; .
(ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus The Company has corporate power and authority to a specified date not more than three own, lease and operate its properties and to conduct its business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(oiii) At The Bank has been organized and is a validly existing federally chartered savings and loan association in capital stock form of organization, authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Offering will be duly authorized and, upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Dallas. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) The MHC has been duly organized and is validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Offering, immediately upon completion thereof subject to compliance with all conditions imposed by the OTS under the terms of the OTS' approval order, in an amount as described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been issued prior to the Closing Date; at the time of the Offering, counsel the Shares subscribed for pursuant to the Agent shOffering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred by the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions, the deposits of which are insured by the FDIC and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions and their holding companies, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(viii) The MHC Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS, and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
(ix) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank, and based upon the certificate of the inspector of election, by the members of the Bank.
(x) Subject to the satisfaction of the conditions to the OTS' approval of the Offering, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time OTS and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary Parties’ knowledge, or threatened by the OTS, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date Date, of Luse Lehman Gorman Pomerenk & Schick, and/or local cou▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇t, ▇▇ ▇▇▇m and addressed substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its benefitproperties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank comply therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) A the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective and as of the Closing Date the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) There are no legal or governmental proceedings pending, or, to such counsel's knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on Acquisition of Wayne Savings Bancshares, Inc.," "Description of ▇▇▇▇▇▇▇ ▇▇▇▇▇ of Wayne Savings Bancshares, Inc.," and "The Convers▇▇▇," ▇▇ LLP▇▇▇ extent that such information constitutes matters of law, special summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel for and is accurate in all material respects.
(xv) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) None of the Primary Parties is in violation of its Certificate of Incorporation or its charter, as the case may be, or its bylaws or, to the best of such counsel's knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel's knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement or otherwise known by such counsel, which shall also state that violation would have a Material Adverse Effect. The Agent's counsel may rely for purposes of its own opinion the opinion(s) of Luse Lehman Gorman Pomerenk & Schick and/or local counsel, whose opin▇▇▇(▇) ▇▇▇▇l ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ori▇▇ ▇▇▇h reliance. The opinion may be limited to matters governed by the laws of the United States and the corporate laws of the State of Delaware and, in the case of local counsel, the State of Ohio. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. In rendering such opinion, all statements contained therein "to our knowledge" or "to our attention" means the actual knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon.
(2) The letter of Luse Lehman Gorman Pomerenk & Schick shall also state ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of ▇▇▇ ▇egistration Statement and the Prospectus, Luse Lehman Gorman Pomerenk & Schick participated in c▇▇▇▇▇▇▇▇▇▇ w▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇icers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Luse Lehman Gorman Pomerenk & Schick has not independe▇▇▇▇ ▇▇▇▇▇▇e▇ ▇▇▇ ▇▇▇▇▇▇▇▇, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse Lehman Gorman Pomerenk & Schick that caused Luse ▇▇▇▇▇▇ ▇▇▇▇a▇ ▇▇▇▇▇▇▇▇ & ▇▇hic▇ ▇▇ ▇elieve that t▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇t▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP relating ▇t t▇▇ ▇▇▇e it was declared effective by the Commission and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the Offeringstatements therein not misleading (it being understood that counsel need express no comment or opinion with respect to statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus, the appraisal valuation or the business plan).
(3) The favorable opinion, dated as of the Closing Date, of Klehr, Ha▇▇▇▇▇n, Harvey, Branzburg & Ellers LLP, counsel for the Agent, ▇▇▇▇ re▇▇▇▇▇ ▇▇ suc▇ ▇▇▇▇ers as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request.
(4) A Blue Sky Memorandum from Luse Lehman Gorman Pomerenk & Schick and/or local coun▇▇▇ ▇▇▇▇▇▇▇g ▇▇ ▇▇▇ ▇▇▇▇▇▇▇g, including Agent’s 's participation therein, shall have been and should be furnished prior to the mailing of the Prospectus, to the Holding Company Agent with a copy thereof addressed to Agent or upon which ▇▇Luse Lehman Gorman Pomerenk & Schick and/or local coun▇▇▇ ▇▇▇▇▇ ▇tate Agent ▇▇▇ LLP shall state the Agent may rely▇ely. The blue sky memorandum ▇▇▇ Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares common stock under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, Grant Thornton LLP, dated as of the date hereof and addressed to the Agent: , ▇▇▇▇ ▇▇▇▇▇▇ (i) confirming that BDO USA, Grant Thornton LLP is a firm of independent registered public accountants within ▇▇▇ ▇▇▇▇▇▇▇ ▇f the applicable rules of 1933 Act and the Public Company Accounting Oversight Board (United States) regulations promulgated thereunder, and stating in effect that in its Grant Thornton LLP's opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion ▇▇▇▇▇▇▇ ▇▇▇▇▇ny included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related published rules and regulations of the SEC and the 1933 ActCommission thereunder; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with standards of the Public Company Accounting Oversight Board (United States)generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information71) of the latest available unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Sources: Agency Agreement (Wayne Savings Bancshares Inc /De/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares Securities to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties MHC, the Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties MHC, the Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties MHC, the Company and the Bank shall have conducted the Conversion Offering in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offering imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion MHC Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementP.C., special counsel for the MHC, the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.:
(i) Concurrently with The Company and the execution of this AgreementMHC have been duly incorporated and are validly existing as a stock holding company and a mutual holding company, respectively, under the Agent shall receive a letter from BDO USA, LLP, dated as laws of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm United States of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; America.
(ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding The Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC have corporate power and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments authority to own, lease and Taxation evidencing the good standing of the Holding Company; operate their properties and (viii) such other documents and certificates to conduct their business as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated described in the Registration Statement and the Prospectus.
(oiii) At The Bank is a validly existing federally-chartered savings bank in stock form, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank is duly authorized, validly issued, fully-paid and non-assessable and owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and, to our Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened;
(v) Upon consummation of the Offering and the issuance of the Foundation Shares, the authorized, issued and outstanding Common Stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Common Stock has been issued prior to the Closing DateDate (except to the MHC); the Securities subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, counsel and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Securities and the Foundation Shares are not subject to preemptive rights and the terms and provisions of the Securities and the Foundation Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, the Securities and the Foundation Shares will not, when issued, be subject to any liens, charges, encumbrances or other claims created by the Company or the Bank.
(vi) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a bank holding company within the meaning of 12 C.F.R. Section 225.2(c) or a savings and loan holding company under HOLA as a result of the issuance of the Foundation Shares to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to establish the Foundation and to contribute the Foundation Shares thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the OTS, copies of which were provided to the Agent shprior to the Closing Time; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(vii) The MHC, the Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the MHC, the Company and the Bank; and this Agreement is a valid and binding obligation of the MHC, the Company and the Bank, enforceable against the MHC, the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(viii) The MHC Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel's Actual Knowledge none is pending or threatened, to revoke any such authorization or approval.
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board OTS, the SEC or any other applicable regulatorauthority government.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateOTS; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of Company’s, the Primary PartiesMHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s, the Mid-Tier Holding Company’s or the Bank’s knowledge, threatened by the CommissionOTS, the Federal Reserve Board SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C, special counsel for the Company, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing in good standing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances State of Maryland; the MHC has been duly incorporated and is validly existing as a federal mutual holding company under which they were made, not misleadingthe laws of the United States of America; the Mid-Tier Holding Company has been duly incorporated and is validly existing as a corporation under the laws of the United States of America.
(ii) since Each of the Company, the MHC and the Mid-Tier Holding Company has the corporate power and authority to own, lease and operate their respective dates properties and to conduct their business as of which information is given described in the Registration StatementStatement and the Prospectus.
(iii) The Bank is a validly existing federally-chartered stock savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. When issued in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, and to such counsel’s Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member in good standing of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Stock Offering—Effects of Conversion on Depositors, Borrowers and Members—Effect on Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the General Disclosure Package issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued upon incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the Prospectus that extent payment therefor in cash has not been so set forthreceived by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Maryland law or regulation, including specificallythe Company’s Articles of Organization or as otherwise may be required pursuant to OTS regulations, but without limitation, any and the terms and provisions of the Common Shares conform in all material adverse change respects to the description thereof contained in the condition, financial or otherwise, or in Prospectus. The form of certificate used to evidence the earnings, capital, properties, business or prospects Common Shares complies with the requirements of Maryland General Corporation Law. Upon the issuance of the Primary Parties independentlyShares, or good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC, the Mid-Tier Holding Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the Primary Parties considered as one enterprisetransactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, whether or not arising in the ordinary course of business MHC, the Mid-Tier Holding Company and the conditions set forth Bank; and this Agreement is a valid and binding obligation of the Company, the MHC, the Mid-Tier Holding Company and the Bank, enforceable against the Company, the MHC, the Mid-Tier Holding Company and the Bank in this Section 8 have been satisfied; accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the representations safety and warranties in Section 4 are true soundness of insured depository institutions, and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) applicable law or public policy with respect to the Primary Parties indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application and Holding Company Application have been approved by OTS and the Prospectus and Members’ Proxy Statement have been declared effective and cleared by the OTS, and to the best of such counsel’s Actual Knowledge, no action has been taken, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan has been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, approved by the required vote of the MHC’s members and approved by the requisite vote of the stockholders of the Mid-Tier Holding Company.
(ix) Subject to the satisfaction of the conditions to the OTS’ approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the American Stock Exchange (as to which no opinion need be rendered).
(x) The Registration Statement has been declared effective under the 1933 Act and to such counsel’s Actual Knowledge, no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or threatened by the SEC.
(xi) At the time the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, was approved by the OTS, the Conversion Application, including the Prospectus and Members’ Proxy Statement and Stockholders’ Proxy Statement contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1934 Act Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the compliance as to form of the Conversion Application, we have assumed that the statements made therein are correct and complete.
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law, it being understood, however, that in passing upon the compliance as to form of the Registration Statement and the Prospectus, we have assumed that the statements made therein are correct and complete.
(xiii) To such counsel’s Actual Knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xv) The Plan complies in all material respects with all material agreements applicable laws, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementPlan, the General Disclosure Package and ProspectusConversion Application, any material loss the Holding Company Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvi) Prior to The execution and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution delivery of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as incurrence of the date hereof obligations herein set forth and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules consummation of the Public Company Accounting Oversight Board transactions contemplated herein do not (United States) and stating a), to such counsel’s Actual Knowledge, conflict with or constitute a breach of, or default under, or result in effect that in its opinion the financial statements and related notes creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company as of December 31or the Bank pursuant to any material contract, 2014indenture, June 30mortgage, 2014 and June 30loan agreement, 2013 and note, lease or other instrument to which the six months ended December 31Company, 2014 and the years ended June 30MHC, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, Company or the Bank is a party that is filed as an exhibit to the Registration Statement (other than normal deposit fluctuations for the establishment of the liquidation account), (b) result in any violation of the provisions of the Articles of Organization or Bylaws of the Company or the Charter or the Bylaws of the MHC, the Mid-Tier Holding Company or the Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or Nasdaq Global Select Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) The information in the Prospectus under the captions “Our Dividend Policy” “Supervision and Regulation,” “Taxation,” “The Conversion,” “Restrictions on Acquisition of United Financial—Maryland” and “Description of Capital Stock of United Financial—Maryland Following The Conversion” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Conversion process in the Prospectus under the caption “The Conversion” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Conversion and Stock Offering—Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinions rendered by them to the Company, or decreases in the total assetsMHC, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus Bank with respect to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding)matters.
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary Rome Parties herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct correct, the condition that the Rome Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time OTS and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Rome Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the Rome Parties’ knowledge, threatened by the OTS, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Wood LLP may rely on such opinion in rendering its opinion pursuant and/or local counsel acceptable to Section 8(d) of this Agreementthe Agent, in form and substance as attached hereto as Exhibit C.satisfactory to the Agent and counsel for the Agent to the effect that:
(di) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a validly existing federal stock savings bank and upon consummation of the Conversion and Reorganization, the Bank will continue to be a validly existing federal stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion and Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. Similarly, based solely on certificates of applicable state licensing agencies, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted under applicable federal law. To the best of such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to the best of such counsel’s knowledge the Mid-Tier Holding Company and the Bank comply therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel’s knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion and Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Rome Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Rome Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors’ rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC’s charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective and as of the Closing Date, the Agent shall have received Registration Statement, including the favorable Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), dated complied as to form in all material respects with the requirements of the Closing Date 1933 Act and addressed the rules and regulations promulgated thereunder.
(xiii) To such counsel’s knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions “Regulation,” “Taxation,” “Restrictions on Acquisition of New Rome Bancorp and Rome Savings” “Description of Capital Stock of New Rome Bancorp” and “The Conversion and Stock Offering,” to the Agent extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xv) None of the Rome Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xvi) None of the Rome Parties is in violation of its Certificate of Incorporation or its charter, as the case may be, or its bylaws or, to the best of such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Rome Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Rome Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement or otherwise known by such counsel which should have otherwise been filed as an exhibit to the Registration Statement, which violation would have a Material Adverse Effect. The Agent’s counsel may rely for purposes of its benefit, own opinion on the opinion(s) of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP and/or local counsel, special whose opinion(s) shall expressly authorize such reliance. The opinion may be limited to matters governed by the laws of the United States and the corporate laws of the State of Delaware and the State of New York. In rendering such opinion, such counsel for may rely (A) as to matters involving the Agentapplication of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in form and substance as such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Rome Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Rome Parties. In rendering such opinion, all statements contained therein “to our knowledge” or “to our attention” or “known to us” means the actual knowledge, following reasonable investigation, of the attorneys who have worked on the transactions contemplated herein and, in the case of the opinion rendered in Section 10(b)(1)(xiii), including a docket search in the counties in which the Rome Parties are located. The opinion of such counsel for the Rome Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. Counsel may expressly exclude any opinion as to choice of law, anti-trust matters and may add other qualifications and explanations as are consistent with the Legal Opinion Accord of the American Bar Association.
(e2) A blue sky memorandum from The letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP shall also state that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Rome Parties, counsel to the Agent, representatives of the independent public accountants for the Rome Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus, the appraisal valuation or the business plan).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Rome Parties delivered pursuant hereto or as such counsel may reasonably request.
(4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Wood LLP relating to the Offeringoffering, including Agent’s participation therein, shall have been and should be furnished prior to the mailing of the Prospectus, to the Holding Company Agent with a copy thereof addressed to Agent or upon which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares common stock under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(ic) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLPIndependent Auditors, dated as of the date hereof and addressed to the Agent: , such letter (i) confirming that BDO USA, LLP is a firm Independent Auditors are firms of independent registered public accountants within the applicable rules meaning of the Public Company Accounting Oversight Board (United States) 1933 Act and the regulations promulgated thereunder, and stating in effect that in its opinion Independent Auditors’ opinions the consolidated financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related published rules and regulations of the SEC and the 1933 ActCommission thereunder; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shstatin
Appears in 1 contract
Sources: Agency Agreement (Rome Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC and the Bank shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion Regulations (except to Reorganization Regulations, the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)laws of Ohio, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS and the Ohio Division.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion MHC-1/MHC-2 Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, the Ohio Division or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPFrost Brown Todd LLC, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇l ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementnsel for the Company, the MHC and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they The Company and the MHC have carefully examined been duly incorporated and are validly existing as corporations under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; United States of America.
(ii) since The Company and the respective dates MHC have corporate power and authority to own, lease and operate their properties and to conduct their business as of which information is given described in the Registration Statement, the General Disclosure Package Statement and the Prospectus.
(iii) The Bank is a validly existing Ohio-chartered savings and loan association in mutual form and immediately following the completion of the Reorganization will be a validly existing Ohio-chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Reorganization will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel's Actual Knowledge, no event has occurred that should have been proceedings for the termination or revocation of such insurance are pending or threatened; The Bank is a "qualified thrift lender" within the meaning of 12 U.S.C. s.1467(a)(m).
(v) Immediately following the consummation of the Reorganization, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in under the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business caption "Capitalization," and the conditions set forth in this Section 8 no Common Shares have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of issued prior to the Closing Date; at the time of the Reorganization, the Common Shares subscribed for pursuant to the Offering and the Charitable Foundation Shares will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares and the Charitable Foundation Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. Upon the issuance of the Charitable Foundation Shares, good title to the Charitable Foundation Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank, the Company and the MHC have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Charitable Foundation have been duly and validly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the Primary Parties have indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The MHC-1/MHC-2 Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS. The OTS has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and the issuance of the Charitable Foundation Shares and no action has been taken, and none is pending or to such counsel's Actual Knowledge threatened, to revoke any such authorization or approval.
(viii) The Ohio Application has been approved be the Ohio Division and, no action has been taken, and none is pending or to such counsel's Actual Knowledge threatened, to revoke any such authorization or approval.
(ix) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank.
(x) Subject to the satisfaction of the conditions to the OTS's approval of the Reorganization, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares, the issuance of the Charitable Foundation Shares and the consummation of the Reorganization, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(xi) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xii) At the time the MHC-1/MHC-2 Application, including the Prospectus contained therein, was approved by the OTS, the MHC-1/MHC-2 Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Reorganization Regulations (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xv) There are no legal or governmental proceedings pending or tot eh Actual Knowledge of such counsel threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xvi) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC-1/MHC-2 Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC-1/MHC-2 Application, the Registration Statement or the Prospectus. The description in the MHC-1/MHC-2 Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvii) The Plan complies in all material respects with all material agreements applicable federal law, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Reorganization Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened issued by the Commission OTS, the Commission, the FDIC, or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending or, instituted or to the knowledge of the Primary Parties, such counsel's Actual Knowledge threatened by the Federal Reserve Board OTS, the Commission, the FDIC, or any other federal or state authority; and (vii) authority and, to the knowledge of the Primary Partiessuch counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the MHC-1/MHC-2 Application, the Holding Company Application or the Prospectus.
(gxviii) None The Company, the MHC and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel's Actual Knowledge the Company, the MHC and the Bank are in all material respects complying therewith.
(xix) Neither the MHC, the Company nor the Bank is in violation of its Charter and Bylaws or its Articles of Incorporation, Constitution and Bylaws, as appropriate or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Primary Parties shall have sustainedMHC, since the date Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the incurrence of the latest financial statements included obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the Registration Statementcreation or imposition of any lien, charge or encumbrance upon any property or assets of the MHC, the General Disclosure Package and Prospectus, Company or the Bank pursuant to any material loss contract, indenture, mortgage, loan agreement, note, lease or interference other instrument to which the MHC, the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the MHC, the Company or the Bank are subject (other than the establishment of the liquidation account); and such action will not result in any violation of the provisions of the Charter or Bylaws of the Company or MHC or the Articles of Incorporation, Constitution or the Bylaws of the Bank or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xx) The Company's Charter and Bylaws comply in all material respects with the laws of the United States of America. The MHC's Charter and Bylaws comply in all material respects with the laws of the United States of America. The Bank's Articles of Incorporation, Constitution and Bylaws comply in all material respects with Ohio law.
(xxi) The information in the Prospectus under the captions "Regulation," "The Reorganization and Offering," "Restrictions on Acquisition of Cheviot Financial Corp.," "Cheviot Savings Bank Charitable Foundation" and "Description of Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Reorganization process in the Prospectus under the caption "The Reorganization and Offering" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Reorganization and Offering--Federal and State Tax Consequences of the Reorganization" has been reviewed by such counsel and fairly describes the federal and state tax opinions rendered by them and Grant Thornton LLP, ▇▇▇▇▇ctively, to the Company, the MHC and the Bank with respect to such matters.
(xxii) The Charitable Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business from fireas described in the Prospectus; the Charitable Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals In addition, explosionsuch counsel shall state that during the preparation of the MHC-1/MHC-2 Application, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given they participated in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shconf
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Sunshine Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Sunshine Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Sunshine Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board OCC and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board OCC or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OCC and the FRB, respectively, and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Sunshine Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Sunshine Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OCC, the FRB or any other federal or state authority.
(c1) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.B.
(d2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Sunshine Parties, counsel to the Agent, representatives of the independent public accountants for the Sunshine Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matter were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(c)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package).
(1) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable attached hereto as Exhibit C.
(2) The letter of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance to the Agenteffect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Sunshine Parties, counsel to the Sunshine Parties, representatives of the independent public accountants for the Sunshine Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matter were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(d)(1)), ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package).
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Sunshine Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Sunshine Parties independently, or of the Primary Sunshine Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Sunshine Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Sunshine Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Sunshine Parties, threatened by the Federal Reserve Board OCC or any other federal or state authority; and (vii) to the knowledge of the Primary Sunshine Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board OCC or any other applicable regulator approving the Conversion.
(g) None of the Primary Sunshine Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Sunshine Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Sunshine Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Sunshine Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Sunshine Parties, threatened against any of the Primary Sunshine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Sunshine Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAHacker, LLP▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAHacker, LLP ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 2012 and the fiscal years ended June 30, 2014 and 2013then ended, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Bank prepared by the Bank and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Sunshine Parties and consultations with officers of the Sunshine Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding CompanyBank, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company Bank and (BC) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding CompanyBank; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanySunshine Parties, which are subject to the internal controls of the Mid-Tier Holding CompanySunshine Parties, the accounting system and other data prepared by the Mid-Tier Holding CompanySunshine Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAHacker, LLP ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PA in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Sunshine Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shappraisal
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Conversion are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary North Penn Parties herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary North Penn Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board The Registration Statement and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The S-4 Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application shall have been approved by the Department and the OTS, the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on OTS, the date of this Agreement, or with State Applications shall have been approved by the Agent’s consent at a later time Department and date; the Bank Merger Application shall have been approved by the FDIC and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement or the S-4 Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary North Penn Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the North Penn Parties’ knowledge, threatened by the Department, the FDIC, the OTS, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇ LLP and/or local counsel acceptable to the Agent, special in form and substance satisfactory to counsel for the Primary Agent as set forth in Exhibit D hereto. The opinion may be limited to matters governed by laws of the United States and the Commonwealth of Pennsylvania and, with respect to enforceability of this Agreement, laws of the State of New Jersey. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the North Penn Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the North Penn Parties, which . The opinion of such counsel for the North Penn Parties shall also state that ▇▇▇it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the North Penn Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP in form and substance to the effect that during the preparation of the Registration Statement, S-4 Registration Statement, the Prospectus and Shareholders’ Proxy Statement/Prospectus, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the North Penn Parties, counsel to the Agent, representatives of the independent registered public accounting firm for the North Penn Parties and representatives of the Agent at which the contents of the Registration Statement, S-4 Registration Statement, the Prospectus and Shareholders’ Proxy Statement/Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, S-4 Registration Statement, Prospectus, and Shareholders’ Proxy Statement/Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP to believe that the Registration Statement and S-4 Registration Statement, at the time they were declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, S-4 Registration Statement, Prospectus or Shareholders’ Proxy Statement/Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP L.L.P., counsel for the Agent, with respect to such matters as the Agent may rely on reasonably require; such opinion in rendering its opinion pursuant may rely, as to Section 8(d) matters of this Agreementfact, in form upon certificates of officers and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as directors of the Closing Date North Penn Parties delivered pursuant hereto or as such counsel may reasonably request and addressed to upon the Agent and for its benefit, opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP.
(4) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable LLP addressed to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP Holding Company and the Agent relating to the OfferingOfferings, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum Blue Sky Memorandum will relate to address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates is an independent registered public accounting firm within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates’ opinion the consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations and the Conversion Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the latest available unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the North Penn Parties, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee and shareholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans, special mention loans or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for stock option plans) at the date of such letter as compared with amounts shown in the latest unaudited statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, provision for loan losses or net interest income after provision, increase in non-interest expense or net income of the Mid-Tier Holding Company and the Bank on a consolidated basis for the period commencing immediately after the Recent Developments period and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the North Penn Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselNorth Penn Parties, dated as of such the Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and S-4 Registration Statement and at the time the Prospectus Registration Statement and S-4 Registration Statement became authorized for final use, the Prospectus and Shareholders’ Proxy Statement/Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement and S-4 Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfiedS-4 Registration Statement; (iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary North Penn Parties have complied in all material respects with all material agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date, Date including the conditions contained in this Section 810; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated issued or, to the knowledge of the Primary Partiestheir knowledge, threatened is threatened, by the Commission or any state authorityother governmental body; (vi) no order suspending the Offering, the Conversion, the Offering acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion, the Exchange or the use effectiveness of the Prospectus or Shareholders’ Proxy Statement/Prospectus has been issued and to their knowledge, no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Department, the FDIC, the OTS, the Commission, or any other federal or state authority; and (vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Department, the FDIC or any other applicable regulator the OTS in approving the Plan or to enjoin the Conversion, and (viii) that the officers and directors of the North Penn Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section 8(bb).
(g) None At the Closing Date, the Agent shall receive a letter from RP Financial LC., dated as of the Primary Closing Date, (i) confirming that said firm is independent of the North Penn Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the North Penn Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the North Penn Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the North Penn Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hi) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, Agent there shall have been no material adverse change Material Adverse Effect on the financial condition or in the financial conditionearnings, results of operations capital, properties or business affairs of the Primary North Penn Parties independently or considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the North Penn Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the North Penn Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iiiii) none of the Primary North Penn Parties shall have received from any Governmental Entity the Department, the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iiiiv) none of the Primary North Penn Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (ivv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, or to the knowledge of the Primary PartiesCompany or the Bank, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s and the Bank’s knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.D.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company and the Bank in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Parties independently, or of Company and the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Bank and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank independently, or of the Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Parties have Company and the Bank complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary PartiesCompany and the Bank, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesCompany and the Bank, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the knowledge of the Primary PartiesCompany and the Bank, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(gf) None of Neither the Primary Parties Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties Company and the Bank considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of neither the Primary Parties Company nor the Bank shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Company and the Bank taken as a Material Adverse Effectwhole; (iii) none of neither the Primary Parties Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary PartiesCompany and the Bank, threatened against any of the Primary Parties Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering Company and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingBank taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany and the Bank.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAMcGladrey & ▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAMcGladrey & ▇▇▇▇▇▇, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142008 and 2007, June 30, 2014 and June 30, 2013 and for each of the six months years in the three-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132008, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in longnon-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, interest expense or decreases any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total dtotal interest income, net income, non-interest income, provision for loan loss, or net interest income after provision for loan losseslosses as compared to the prior year period; or (C) there was any increase in borrowings, income before income tax expense non-performing loans, non-performing assets, or net income of special mention loans, or any decrease in loan loss allowance, total assets, or equity, at the Mid-Tier Holding Companydate specified in such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAMcGladrey & ▇▇▇▇▇▇, LLP in the letter delivered by it pursuant to subsection (ih) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kj) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates a certificate from the Federal Reserve Board OTS evidencing the valid existence of the MHC and the Mid-Tier Holding CompanyBank; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Dallas evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(om) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to ------------------------------------- hereunder and the Shares to be delivered at occurrence of the Closing Date, and the Reorganization are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respectscorrect, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties The Conversion shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise been approved by the Federal Reserve Board Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) FDIC. The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company BHC Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementFRB, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge any of the Primary Parties' knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ ' knowledge, threatened by the Division, the FDIC, the FRB, the Commission, the Federal Reserve Board or any other federal or state authoritygovernmental body.
(cb) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of M▇▇▇▇▇▇ ▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP, and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent as set forth in Exhibit C hereto. The opinion may be limited to matters governed by the laws of the United States and the Commonwealth of Massachusetts. In rendering such opinion regarding Massachusetts law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties, which Parties shall also state that ▇▇▇▇it has no reason to believe that the Agent is not justified in relying thereon.
(2) The letter of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Aguggia LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At to the Closing Date, effect that during the Agent shall have received the favorable opinion, dated as preparation of the Closing Date Registration Statement and addressed to the Agent and for its benefitProspectus, of ▇▇▇▇M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇A▇▇▇▇▇▇ LLPLLP participated in conferences with certain officers of and other representatives of the Primary Parties, special counsel for to the Agent, in form representatives of the independent public accounting firm for the Primary Parties and substance as reasonably acceptable representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the Agent.
statements contained therein and, although (ewithout limiting the opinions provided pursuant to Section 9(b)(1)) A blue sky memorandum from M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Reserve, the FDIC, and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on Reserve, as applicable, as of the date of this AgreementAgreement and, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority, regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the CommissionFederal Reserve, the Federal Reserve Board Commission or the FDIC or any other federal regulatory authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitbenefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ LLP may rely dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of ▇▇▇▇▇▇ LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Primary Parties and committees thereof and consultations with officers of the Primary Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such opinion unaudited financial statements included in rendering the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion pursuant included in the Prospectus and the performance of the procedures referred to Section 8(din clause (ii) of this Agreementsubsection (d), they have compared with the general accounting records of the Primary Parties, which are subject to the internal controls of the accounting system of the Primary Parties and other data prepared by the Primary Parties from accounting records, to the extent specified in form such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and substance as attached hereto as Exhibit C.they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(de) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating dated the Closing Date, addressed to the OfferingAgent, including Agent’s participation thereinconfirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state such documents as counsel for the Agent may rely. The blue sky memorandum will relate reasonably require for the purpose of enabling them to advise the Agent with respect to the necessity of obtaining or confirming exemptions, qualifications or the registration issuance and sale of the Shares under applicable state securities lawas herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(fg) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselParties, dated as of such the Closing Date, to the effect that: :
(i1) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii2) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii3) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv4) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v5) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been initiated orissued and, to the knowledge of the Primary Partiestheir knowledge, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that any such purpose are pending or, to the knowledge of the Primary Parties, have been initiated or threatened by the Federal Reserve Board Reserve, the Commission, the FDIC or any other federal or state authority; and and
(vii7) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator the FDIC in approving the Applications or to enjoin the Conversion.
(gh) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ Financial LLC, dated as of the Closing Date,
(1) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hj) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary Parties considered independently, or the Primary Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: parties will have received (i) a copy of the letters letter from the Federal Reserve Board and any other applicable regulator approving the Holding Company Application; (ii) a copy of the letter from the Federal Reserve approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (iiiii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company, if available; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Chicago evidencing the Bank’s membership therein; (viivi) a certificate from the Secretary of State of the State of Maryland State Department of Assessments and Taxation evidencing the good standing valid existence of the Company; (vii) certificates from the Federal Reserve evidencing the valid existence of the Mid-Tier Holding CompanyCompany and the MHC; (viii) a certificate from the Office of the Comptroller of the Currency evidencing the valid existence of the Bank; (ix) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; and (viiix) such any other documents and certificates as the that Agent may shall reasonably request.
(nl) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; :
(i1) a suspension or limitation in trading in securities generally on the New York Stock Exchange (Exchange, the “NYSE”) NASDAQ, or in the over-the-counter market, or quotations halted generally on the Nasdaq OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; ;
(ii2) a general moratorium on the operations of commercial banks, federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii3) a material adverse change in the engagement by financial markets in the United States in or elsewhere or any outbreak of hostilities that have resulted in the declarationor escalation thereof or other calamity or crisis, on or including, without limitation, terrorist activities after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline which, in the reasonable judgment of the Agent, is so material and adverse, in the Agent’s reasonable judgment, adverse as to make it impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the Offering sale of the Shares.
(n) Prior to and at the Closing Date, none of the Primary Parties will have received from the Federal Reserve or the delivery of the Shares on the terms and FDIC any direction (oral or written) to make any material change in the manner contemplated in method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Registration Statement and the ProspectusAgent).
(o) At or prior All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the Closing Date, counsel provisions hereof only if they are reasonably satisfactory in form and substance to the Agent shand to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Primary Party to the Agent as to the statements made therein.
Appears in 1 contract
Sources: Agency Agreement (1895 Bancorp of Wisconsin, Inc. /MD/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Vorys, Sate▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Peas▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementecial counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were made, not misleading; State of Ohio.
(ii) since the respective dates as of which information is given in the Registration StatementThe Company has corporate power and authority to own, the General Disclosure Package lease and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement operate its properties and to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with conduct its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and sale of the Shares and all obligations of the Agent hereunder, as hereunder are subject to the Shares to be delivered at accuracy of the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank contained herein are, at and as of the commencement date hereof and the Closing Time, to the accuracy of the Offering statements of officers and at and as directors of the Closing DateCompany and the Bank made pursuant to the provisions hereof, true to the performance by the Company and correct in all material respects, the condition that the Primary Parties shall have performed all Bank of its their obligations hereunder to be performed on or before such dateshereunder, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Prospectus contained in the FDIC Conversion Application Notice and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on FDIC and the date Department of this AgreementBanking for mailing prior to the commencement of the Offering, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Securities Act or proceedings therefore initiated or, to the knowledge any of the Primary HVB Parties’ best knowledge, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued or proceedings therefore initiated or, to any of the Primary HVB Parties’ best knowledge, threatened by the Commission, the Federal Reserve Board FDIC, the Department of Banking, the FRB or any other federal or state authoritygovernmental body.
(cb) At the Closing DateTime, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special LLP acceptable to Agent in form and substance satisfactory to counsel for the Primary PartiesAgent, which shall also state that ▇▇▇▇▇as set forth in Exhibit C.
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion participated in rendering its opinion conferences with certain officers of and other representatives of the HVB Parties, counsel to Agent, representatives of the independent public accounting firm for the HVB Parties and representatives of Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 8(d10(b)(1)) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP has not independently verified the accuracy, completeness or fairness of this Agreementthe statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇ ▇▇▇▇▇▇ LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Closing Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in form light of the circumstances under which they were made, not misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, schedules and substance as attached hereto as Exhibit C.other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package).
(d3) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefitTime, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇, LLP, special counsel for the AgentVictory Parties, acceptable to Agent in form and substance satisfactory to counsel for Agent, as reasonably acceptable to the Agent.set forth in Exhibit D.
(e4) A blue sky memorandum from The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇, P.C., counsel for Agent, as set forth in Exhibit E; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the HVB Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP.
(c) Concurrently with the execution of this Agreement, Agent shall receive a letter from (i) BDO USA, LLP, dated the date hereof and addressed to Agent, such letter confirming that BDO USA, LLP relating is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the HVB Parties is required by Item 13 of the Registration Statement, and stating in effect that in BDO USA, LLP’s opinion the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the Offeringapplicable accounting requirements of the Securities Act, including Agent’s participation thereinthe Exchange Act and the related published rules and regulations of the Commission thereunder and the Conversion Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of the meetings of the Board of Directors of the HVB Parties, the Audit Committee of the Bank, a review of the unaudited interim financial information as of and for the interim period ending , 2014 and the latest available unaudited quarterly financial statements of the Bank prepared by the Bank which shall have been furnished be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the mailing date of the ProspectusProspectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowances or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense or net interest income of the Bank or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the HVB Parties; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the HVB Parties directly from such accounting records, to the Holding Company extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) Concurrently with the execution of this Agreement, Agent shall receive a copy thereof letter from (i) BDO USA, LLP, dated the date hereof and addressed to Agent Agent, such letter confirming that BDO USA, LLP is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the Securities Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Victory Parties is required by Item 13 of the Registration Statement, and stating in effect that in BDO USA, LLP’s opinion the financial statements of Victory Bancorp included in the Prospectus covered by BDO USA, LLP’s opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the related published rules and regulations of the Commission thereunder and the Conversion Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of the meetings of the Board of Directors of the Victory, the Audit Committee of Victory Bank, a review of the unaudited interim financial information as of and for the interim period ending , 2014 and the latest available unaudited quarterly financial statements of Victory Bancorp prepared by Victory Bancorp which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of Victory Bancorp responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits) of Victory Bancorp or decrease in assets, deposits, loan losses allowances or retained earnings of Victory Bancorp or there was any decrease in net income, non-interest income, tax expense or net interest income of Victory Bancorp or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Victory Parties; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of Victory Bancorp, which are subject to the internal controls of the accounting system of Victory Bancorp and other data prepared by the Victory Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may rely. The blue sky memorandum will relate reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Time, Agent shall receive a letter from BDO USA, LLP dated as of the Closing Time, addressed to Agent, confirming the statements made in the letters delivered by it pursuant to subsections (c) and (d) of this Section 10, the “specified date” referred to in clause (ii)(B) of such subsections to be a date specified in such letter, which shall not be more than three (3) business days prior to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities lawClosing Time.
(f) At the Closing DateTime, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Time, Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselHVB Parties, dated as of such the Closing DateTime, without personal liability to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, and at the time the Prospectus became authorized for final use, the Prospectus did not contain any 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; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, condition or in the earnings, capital, properties, business prospects or prospects business affairs of the Primary Parties independentlyHVB Parties, considered as one enterprise, or of the Primary Parties Victory Parties, considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing DateTime; (iv) each of the Primary HVB Parties have and the Victory Parties has complied in all material respects with all material agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing DateTime in this Agreement, the Merger Agreement and any approvals or orders issued by the FDIC, the Department of Banking, or the FRB with respect to the Merger or the Conversion including the conditions contained in this Section 810; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, or the effectiveness of the Registration Statement has been initiated or, issued and to the knowledge best of the Primary Partiestheir knowledge, no proceedings for any such purpose have been initiated or threatened by the Commission or any state authority; (vi) no order suspending the ConversionFDIC, the Offering or Department of Banking, the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge best of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FDIC or any other applicable regulator the Department of Banking in approving the ConversionPlan or to enjoin the Offering.
(gh) At the Closing Time, Agent shall receive a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the HVB Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the HVB Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary HVB Parties or Victory Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the HVB Parties or the Victory Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shma
Appears in 1 contract
Sources: Agency Agreement (HV Bancorp, Inc.)
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or OTS, the FDIC, the Commission and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application approved by the OTS, and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's and the Association's knowledge, threatened by the Commission, the Federal Reserve Board OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its their benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, L.L.P., counsel for the Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing and in good standing under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were madeState of Delaware and has corporate power and authority to own, not misleadinglease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Company is qualified to do business as a foreign corporation in Ohio.
(ii) since The Association is a validly existing federal savings bank in the respective dates mutual form of organization under the laws of the United States of America and, upon the consummation of the Conversion, shall be a validly existing federal savings bank in the capital stock form of organization under the laws of the United States, in both instances with full corporate power and authority to conduct its business and own its property as of which information is given described in the Registration StatementStatement and Prospectus; and upon consummation of the Conversion, all of the issued and outstanding capital stock of the Association shall be duly authorized and, upon payment therefor, shall be validly issued, fully paid and non-assessable, and all such capital stock shall be owned of record and, to such counsel's knowledge, shall be owned beneficially by the Company free and clear of any liens, encumbrances or claims.
(iii) The Association is a member of the FHLB-Cincinnati; the deposit accounts of the Association are insured by the FDIC under the SAIF up to the maximum amount allowed under law; and, to such counsel's knowledge, no proceedings for the termination or revocation of such membership or insurance are pending or threatened.
(iv) Upon consummation of the Conversion, the General Disclosure Package authorized, issued and outstanding capital stock of the Prospectus, no event has occurred that should have been Company shall be within the range set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in under the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects caption "Capitalization," and except for shares issued upon incorporation of the Primary Parties independentlyCompany, or no shares of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 Common Stock have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or issued prior to the Closing Date; upon consummation of the Conversion, including the conditions Shares subscribed for pursuant to the Offering have been duly and validly authorized for issuanc and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, shall be duly and validly issued, fully paid and non-assessable; except for subscription rights granted pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights; the terms and provisions of the Shares conform to the description thereof contained in this Section 8the Prospectus; and the form of certificate used to evidence the Common Stock complies with applicable law. To such counsel's knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(v) The Conversion Application and the Holding Company Application have been approved by the OTS and the Prospectus and the proxy statement of the Association has been authorized for use by the OTS; and no action is pending or, to such counsel's knowledge, threatened to revoke any such authorizations or approvals.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Association; and this Agreement is a valid and binding obligation of the Company and the Association, enforceable against the Company and the Association in accordance with its terms, except as the enforceability thereof may be limited (a) by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (b) by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, (c) by laws relating to the safety and soundness of insured depository institutions or (d) by applicable law or public policy with respect to the indemnification and contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act.
(vii) The execution and delivery of this Agreement and the incurrence and performance of the obligations set forth herein by the Company and the Association do not (a) result in any violation of any applicable law or regulation (except that no opinion need be rendered with respect to the Blue Sky Laws of various jurisdictions), (b) conflict with or violate the certificate of incorporation and bylaws of the Company or the charter and bylaws of the Association in mutual or stock form, or (c) to such counsel's knowledge, constitute a breach of, or default under (or an event which, with notice or lapse of time or both, would constitute a default under), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Association or the Company pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Association is subject that, individually or in the aggregate would have a material adverse effect on the financial condition, results of operations or business of the Company and the Association.
(viii) The Plan has been duly adopted by the vote of the directors of the Company and the Association as required by the Conversion Regulations and, based upon the certificate of the inspectors of election, approved by the eligible voting members of the Association in accordance with the Conversion Regulations and the Association's charter and bylaws.
(ix) Subject to the satisfaction of the conditions to the OTS approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any governmental agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the Blue Sky Laws of various jurisdictions or the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel's knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein (other than the financial statements, the notes thereto, financial tables, and other financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the Conversion Regulations.
(xii) At the time that the Registration Statement became effective, the Registration Statement, including the Prospectus (other than the financial statements, the notes thereto, financial tables, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company or the Association or principals of the Company or the Association that are required to be disclosed in the Registration Statement and the Prospectus other than those disclosed therein
(xiv) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits to the Registration Statement or the Conversion Application other than those described or referred to therein or filed as exhibits thereto; the descriptions in the Conversion Application, the -19- Registration Statement and the Prospectus of the contracts, indentures, mortgages, loan agreements, notes, leases or other instruments filed as exhibits thereto are accurate in all material respects and fairly present the information required to be shown.
(xv) The Plan complies with the HOLA and the Conversion Regulations; no order has been issued by the OTS, the Commission or any state authority; (vi) no order suspending the Conversion, authority to suspend the Offering or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending instituted or, to the knowledge of the Primary Partiessuch counsel's knowledge, threatened by the Federal Reserve Board or any other federal or state authoritythreatened; and (vii) and, to the knowledge of the Primary Partiessuch counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the Conversion Application, th Holding Company Application or the Prospectus.
(gxvi) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration StatementTo such counsel's knowledge, the General Disclosure Package Company and Prospectusthe Association have obtained all licenses, any material loss or interference with its business from fire, explosion, flood or permits and other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than authorizations currently required for the conduct of their respective businesses as set forth described in the Registration Statement and the Prospectus, and since except for licenses, approvals or authorizations the respective dates as failure of which information is given to have would not result in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no a material adverse change in the financial condition, results of operations operation or the business of the Primary Parties considered Company an the Association, taken as one enterprisea whole, from and, to such counsel's knowledge, all such licenses, permits and as of other governmental authorizations are in full force and effect, and, to such counsel's knowledge, the latest date as of which such condition is set forth in Company and the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied Association are in all material materials respects complying therewith.
(which directionxvii) To such counsel's knowledge, if anyneither the Company nor the Association is in violation of its certificate of incorporation and bylaws, shall have been disclosed or charter and bylaws, respectively, nor, to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been such counsel's knowledge, in default (nor shall an has any event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision in the performance or observance of any agreement obligation, agreement, covenant or instrument relating to condition contained in any material outstanding indebtedness; contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which the Company, the Association or any of their property may be bound in any respect that would have a material adverse effect upon the financial condition, results of operations or business of the Company and the Association, taken as a whole.
(ivxviii) The Company's certificate of incorporation and bylaws comply with the laws of the State of Delaware. The Bank's charter and bylaws, to be effective upon completion of the Conversion, comply with the laws of the United States of America.
(xix) to make any material change in the method of conducting its business.
(xx) The information in the Prospectus under the captions "Regulation," "The Conversion," "Restrictions on Acquisitions of Stock and Related Takeover Defensive Provisions," "Taxation," and "Description of Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate and complete in all material respects. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Company and the Association and certificates of public officials. Such opinion may specify that it shall be limited to matters of federal, Delaware and Ohio law. All references to "to such counsel's knowledge" in such opinion shall refer to the actual and conscious awareness of facts or other information of the individual Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., attorneys who have been actively involved in the transactions contemplated by this Agreement or the preparation of such opinion. For purposes of such opinion, no actionproceedings shall be deemed to be pending, suit no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Association, or their counsel, shall have received a copy of such proceedings, order, stop order or action and such counsel need not regard an litigation or governmental proceeding to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company or the Association or to such counsel, a present intention to initiate such litigation or proceeding. Such counsel may assume that any agreement is the valid and binding obligation of any parties to such agreement other than the Company or the Association. In addition, at law or in equity or before or by any federal or state commissionsuch counsel shall provide a letter stating that during the preparation of the Registration Statement, board or other administrative agency, not disclosed in Conversion Application and the Prospectus, shall be pending or, to the knowledge such counsel participated in conferences with certain officers and other representatives of the Primary PartiesAssociation and the Company, threatened against any representatives of the Primary Parties or affecting any of their properties wherein an unfavorable decisionAgent, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed counsel to the Agent, (i) confirming representatives of the independent public accountants for the Association and the Company at which the contents of the Registration Statement, the Conversio Application and the Prospectus and related matters were discussed and, although they are not passing upon and do not assume the responsibility for the accuracy, completeness or fairness of the statements made by BDO USA, LLP contained in the letter delivered by it pursuant to subsection (i) of this Section 8Registration Statement, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date Conversion Application and (ii) stating in effect thatProspectus, on the basis of certain agreed upon procedures the foregoing (but not an audit in accordance with standards relying as to factual matters on certificates of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared officers and other factual representations by the Mid-Tier Holding Company Association and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting mattersCompany), nothing came has come to their such counsel's attention which that caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in that the Registration Statement at the time it was declared effective by the SEC or the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements as of the Commission, its date and GAAP applied on a basis substantially consistent with that as of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale contained or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and contains any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, untrue statement of a national emergency material fact or war omitted or a omits to state any material decline in fact required to be stated therein or necessary to make the price of equity or debt securities, if the effect of such declaration or decline is so material and adversestatements therein, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery light of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
circumstances under which they were made, not misleading (o) At or prior to the Closing Date, counsel to the Agent shit being understo
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed in all material respects all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Bank shall have conducted the Conversion Conversion, including the contribution to the Foundation, in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board Commissioner and the FDIC, the SEC or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and SEC, the Conversion Application and Acquisition Statement approved by the Commissioner and not objected to by the FDIC and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and dateFRB; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of Company’s, the Primary PartiesMHC’s or the Bank’s knowledge, threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company’s, the MHC’s or the Bank’s knowledge, threatened by the CommissionCommissioner, the Federal Reserve Board FDIC, the FRB the SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of H▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇& S▇▇▇▇▇ LLP, special counsel for the Primary PartiesCompany, the MHC, the Mid-Tier Holding Company and the Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing as a business corporation under the laws of the State of Maryland; the MHC has been duly incorporated and is legally existing as a nonstock corporation and mutual holding company under the laws of the State of Connecticut; the Mid-Tier Holding Company has been duly incorporated and is legally existing as a business corporation and mutual holding company subsidiary holding company under the laws of the State of Connecticut.
(ii) Each of the Company and the MHC has the corporate power and authority to own, lease and operate their respective properties and to conduct their business as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus.
(iii) The Bank is a validly existing Connecticut-chartered savings bank in stock form duly authorized to conduct its business and own its property as described in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus. Upon completion of the Conversion in accordance with the Plan, all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Boston. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law (exclusive of any opt in provisions) , and to such counsel’s knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions “The Conversion and Offering-Effects of Conversion on Depositors and Borrowers-Effect on Liquidation Rights” and “-Liquidation Rights” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and except for shares issued in connection with incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering and the Foundation Shares have been duly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable, except for Shares purchased by the Tax-Qualified Employee Stock Benefit Plan with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company. The issuance of the Shares is not subject to preemptive rights arising by operation of Maryland or Connecticut law or regulations, the Company’s Articles of Incorporation or pursuant to the regulations of the Commissioner, FDIC or FRB (except to the extent that subscription rights and priorities thereto exist pursuant to the Plan), and the terms and provisions of the Common Shares conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Shares complies with the requirements of Maryland General Corporation Law. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Company, the MHC and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, including the contribution to the Foundation. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company, the MHC and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable against the Company, the MHC and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application and Acquisition Statement have been approved by the Commissioner and not objected to by the FDIC, and the Holding Company Application has been approved by the FRB and the Prospectus and Corporator’s Informational Material have been declared effective and cleared by the Commissioner, no action has been taken, and to such counsel’s knowledge, is pending, or is threatened to revoke any such authorization or approval.
(viii) Pursuant to the Conversion Regulations, the Plan and the contribution to the Foundation have been duly adopted by the required vote of the directors of the Company, the MHC, the Mid-Tier Holding Company and Bank, and approved by the required vote of the Corporators of the MHC.
(ix) Subject to the satisfaction of the conditions to the Commissioner’s, the FDIC’s and the FRB’s approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, including the contribution to the Foundation, except as may be required under the securities or blue sky laws of various jurisdictions (as to which shall also state that ▇▇▇▇▇▇▇no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433, and no stop order proceedings with respect thereto have been instituted or, to the knowledge of such counsel, are pending or threatened under the 1▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C..
(dxi) At the Closing Datetime the Conversion Application, including the Prospectus and Corporator’s Informational Material contained therein, was approved by the Commissioner, the Agent shall have received Conversion Application, including the favorable opinionProspectus and Corporator’s Informational Material contained therein, dated complied as to form in all material respects with the requirements of the Closing Date Conversion Regulations, the 1934 Act Regulations (other than the Corporator’s Informational Material), federal law and addressed all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), it being understood, however, that in passing upon the Agent compliance as to form of the Conversion Application, we have assumed that the statements made therein are correct and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agentcomplete.
(exii) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the Offeringfinancial statements, including Agent’s participation the notes thereto, and other tabular, financial, statistical and appraisal data included therein, shall have been furnished prior as to which no opinion need be rendered), complied as to form in all material respects with the mailing requirements of the Prospectus1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration requirements of the Shares under 1933 Act, the 1933 Act Regulations, the Conversion Regulations and applicable state securities federal law.
(fxiii) At To such counsel’s knowledge, no action, suit or proceeding at law or in equity is pending or threatened in writing against or affecting any of the Closing DateCompany, the Agent shall receive MHC, the Mid-Tier Holding Company or the Bank or any of their properties before or by any court or governmental official, commission, board or other administrative agency, authority or body, or any arbitrator, wherein an unfavorable decision, ruling or finding would have a certificate material adverse effect on the ability of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final useCompany, the Prospectus did not contain any untrue statement of a material fact MHC, the Mid-Tier Holding Company or omit the Bank to state a material fact necessary in order consummate the transactions contemplated by this Agreement or which is required to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given be disclosed in the Registration StatementStatement or the Prospectus and is not so disclosed.
(xiv) To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the General Disclosure Package Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus, no event has occurred that should have been set forth Prospectus of such documents and exhibits is accurate in an amendment or supplement all material respects and fairly presents the information required to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; be shown.
(iiixv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied The Plan complies in all material respects with all material agreements applicable laws, rules, regulations, decisions and satisfied all conditions on their part to be performed or satisfied at or prior to orders including, but not limited to, the Closing Date, including the conditions contained in this Section 8Conversion Regulations; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orand, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board Commissioner, the FDIC or any other applicable regulator approving the Conversion.
(g) None of FRB on the Primary Parties shall have sustainedPlan, since the date of Conversion Application, the latest financial statements included in the Registration Acquisition Statement, the General Disclosure Package and Prospectus, any material loss Holding Company Application or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hxvi) Prior to The execution and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution delivery of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as incurrence of the date hereof obligations herein set forth and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules consummation of the Public Company Accounting Oversight Board transactions contemplated herein do not (United Statesa) and stating conflict with or constitute a breach of, or default under, or result in effect that in its opinion the financial statements and related notes creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier Holding Company as of December 31or the Bank pursuant to any material contract, 2014indenture, June 30mortgage, 2014 and June 30loan agreement, 2013 and note, lease or other instrument to which the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding CompanyMHC, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and or the Bank is a party that is filed as an exhibit to the Registration Statement (B) during other than the period from the date establishment of the recent developments financial information included liquidation accounts), (b) result in the Prospectus to a specified date not more than three business days prior to the date any violation of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income provisions of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance Articles of Incorporation or Bylaws of the procedures referred to in clause (ii) Company or the Certificate of this subsection (i), they have compared with Incorporation or the general accounting records Bylaws of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by or the Mid-Tier Holding Company Bank or, (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and from which blue sky laws of various jurisdictions or the rules or regulations of FINRA and/or Nasdaq Global Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) Farmington Savings Loan Servicing Inc., Village Investments, Inc., Village Corp., Limited, 2▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇ Management Corp. and Village Square Holdings, Inc. (collectively the “Recent Developments” information included Subsidiaries”) are validly existing as corporations under the laws of the State of Connecticut, and have the power and authority to own, lease and operate their properties and to conduct their businesses as described in the Prospectus was derived, a reading Prospectus; the activities of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included Subsidiaries as described in the Prospectus are not in conformity with permitted to subsidiaries of a Connecticut state chartered savings bank under the 1933 Act, applicable accounting requirements BHCA; all of the Commission, issued and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of outstanding shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration Subsidiaries are owned beneficially and of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement record by the United States in hostilities that have resulted in the declarationBank free and clear of any security interest, on mortgage, pledge, lien or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectusencumbrance.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary CS Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary CS Parties shall have performed performed, in all material respects, all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary CS Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OCC, the Federal Reserve Board and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the OCC and Federal Reserve Board not later than 5:30 p.m. on the date of this AgreementReserve, or with the Agent’s consent at a later time and date; and respectively, and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary CS Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to the Primary knowledge of the CS Parties’ knowledge, threatened by the CommissionOCC, the Federal Reserve Board Reserve, the Commission, or any other federal governmental authority. The Shares shall have been registered for offering and sale or state authorityexempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received the favorable received:
(1) The opinion, dated as of the Closing Date and addressed to the Agent and for its benefitDate, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, PC, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect as attached hereto as Exhibit C.B:
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, the Prospectus, the Conversion Application, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the CS Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CS Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) At Prior to the Closing Date, the Agent shall have received the favorable opinion, dated as mailing of the Closing Date and addressed to the Agent and for its benefitProspectus, of ▇▇▇▇▇▇▇a blue sky memorandum from L▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP PC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇L▇▇▇ ▇▇▇▇▇▇ LLP shall state ▇, PC permits the Agent may to rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(e) Concurrently with the execution of this Agreement, the Agent shall receive a letter from S▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ PLLC dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from S▇▇▇▇▇ & S▇▇▇▇▇▇▇▇ PLLC dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (e) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCS Parties, dated as of such the Closing Date, to the effect that: :
(i) they have carefully examined the Prospectus and, in their opinion, Registration Statement and at the time the Prospectus Registration Statement became authorized for final useeffective, the Prospectus did not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; ;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Statement and the Prospectus, no event has occurred that should have been any Material Adverse Effect otherwise than as set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change contemplated in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Registration Statement and the conditions set forth in this Section 8 have been satisfied; Prospectus;
(iii) the representations and warranties contained in Section 4 6 of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date; ;
(iv) the Primary CS Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority; (vi) no order suspending the ConversionOCC, the Offering or Federal Reserve, the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and and
(vii) to the knowledge of the Primary Partiestheir knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board OCC in approving the Plan or any other applicable regulator approving to enjoin the Conversion.
(gi) At the Closing Date, the Agent shall receive a letter from K▇▇▇▇▇ & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the CS Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CS Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Primary CS Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hk) Prior to and at the Closing Date: (i) , in the reasonable opinion of the Agent, Agent there shall have been no material adverse change in the financial condition, results of operations condition or in the earnings or business of any of the Primary CS Parties considered independently, or the CS Parties taken as one enterprisea whole, from and as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions except as referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: receive (i) a copy of the Conversion Application and a copy of the letters from the Federal Reserve Board and any other applicable regulator OCC approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; Application, (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; , (iii) certificates a copy of the letter from the Federal Reserve Board evidencing approving the valid existence of the MHC and the Mid-Tier Holding Company; Company Application, (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC FHLB-Cincinnati evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shmembership
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to Regulations, the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)laws of Maryland, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC, or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.received:
(d1) At the Closing Date, the Agent shall have received the The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the AgentCompany and the Bank, in form and substance as reasonably acceptable to the Agenteffect that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Maryland.
(eii) A The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Bank is a validly existing federally chartered savings bank in mutual form and immediately following the completion of the Conversion will be a validly existing federally chartered savings bank in permanent capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Bank upon completion of the Conversion will be duly authorized and, upon payment therefor, will be validly issued, fully-paid and non-assessable and will be owned by the Company, to such counsel's Actual Knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iv) The Bank is a member of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of such insurance are pending or threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion--Effects of Conversion to Stock Form--Liquidation Account," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(v) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no Common Shares have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and Prospectus, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Company to the extent payment therefor in cash has not been received by the Company; except to the extent that subscription rights and priorities pursuant thereto exist pursuant to the Plan, the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Bank and the Company have full corporate power and authority to enter into the Agreement and to consummate the transactions contemplated thereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of federally chartered savings institutions, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS. The OTS has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Bank, and based upon the certificate of the inspectors of election, by the members of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS's approval of the Conversion, no further approval, registration, authorization, consent or other order of any federal regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky memorandum from laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) To the Actual Knowledge of such counsel, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvi) The Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; to such counsel's Actual Knowledge, no order has been issued by the OTS, the Commission, the FDIC, or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or threatened by the OTS, the Commission, the FDIC, or any other state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus.
(xvii) To such counsel's Actual Knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xviii) Neither the Company nor the Bank is in violation of its Articles of Incorporation and Bylaws or its Charter and Bylaws, as appropriate or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Company and the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than the establishment of the liquidation account); and such action will not result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company or the Charter or the Bylaws of the Bank or result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD need be rendered) or order or court order, writ, injunction or decree.
(xix) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Maryland. The Bank's Charter and Bylaws comply in all material respects with federal law.
(xx) The information in the Prospectus under the captions "Regulation and Supervision," "The Conversion," "Restrictions on Acquisition of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which Financial and ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state Federal" and "Description of ▇▇▇▇▇▇▇▇ Financial's Capital Stock," to the Agent may relyextent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The blue sky memorandum will relate description of the Conversion process in the Prospectus under the caption "The Conversion" to the necessity extent that such information constitutes matters of obtaining law, summaries of legal matters, documents or confirming exemptionsproceedings, qualifications or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the registration Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion--Effects of the Shares under applicable Conversion to Stock Form--Tax Effects" has been reviewed by such counsel and fairly describes the federal and state securities law.
(f) At the Closing Datetax opinions rendered by them and ▇▇▇▇▇, the Agent shall receive a certificate of the Chief Executive Officer ▇▇▇▇▇▇ and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s CounselCompany LLP, dated as of such Closing Daterespectively, to the effect that: (i) Company and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the Conversion Application, the Registration Statement and the Prospectus, they have carefully examined participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Conversion Application, the Registration Statement and the Prospectus and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the information contained in their opinionthe Conversion Application, at the time Registration Statement or the Prospectus became authorized and do not assume any responsibility for final usesuch information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Company and the Bank), nothing has come to their attention that would lead them to believe that the Conversion Application, the Prospectus did not contain Registration Statement, the Prospectus, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since . In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Company and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents Bank and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shpublic officials. Such counsel's op
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Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary ▇▇▇▇▇▇▇▇ Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary ▇▇▇▇▇▇▇▇ Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary ▇▇▇▇▇▇▇▇ Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Massachusetts Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application Applications shall have been approved by the Federal Reserve Board Division not later than 5:30 p.m. p.m., eastern time, on the date of this Agreement, or with and by the Agent’s consent at a later time and dateFRB prior to the Closing Date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary ▇▇▇▇▇▇▇▇ Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary ▇▇▇▇▇▇▇▇ Parties’ knowledge, threatened by the Commission, the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPProcter, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementParties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇ ▇▇▇▇▇▇, PC (“▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP”), special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP Procter relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP Procter shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares and the Foundation Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary ▇▇▇▇▇▇▇▇ Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary ▇▇▇▇▇▇▇▇ Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the ▇▇▇▇▇▇▇▇ Parties independently, or of the Primary ▇▇▇▇▇▇▇▇ Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary ▇▇▇▇▇▇▇▇ Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary ▇▇▇▇▇▇▇▇ Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary ▇▇▇▇▇▇▇▇ Parties, threatened by the Federal Reserve Board FRB, the Division, or any other federal or state regulatory authority; and (viiviii) to the best knowledge of the Primary ▇▇▇▇▇▇▇▇ Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Primary ▇▇▇▇▇▇▇▇ Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary ▇▇▇▇▇▇▇▇ Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary ▇▇▇▇▇▇▇▇ Parties shall have received from any Governmental Entity the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the ▇▇▇▇▇▇▇▇ Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary ▇▇▇▇▇▇▇▇ Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary ▇▇▇▇▇▇▇▇ Parties, threatened against the any of the Primary ▇▇▇▇▇▇▇▇ Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have materially and adversely affect the financial condition, results of operations or business of the ▇▇▇▇▇▇▇▇ Parties taken as a Material Adverse Effectwhole; and (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting Shares and the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Foundation Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary ▇▇▇▇▇▇▇▇ Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company MHC as of December 31, 2015 and 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 ActCommission; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors or Board of Trustees, as applicable, of each of the ▇▇▇▇▇▇▇▇ Parties and consultations with officers of the MHC responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest unaudited interim consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyMHC, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from MHC at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyMHC, which are subject to the internal controls of the Mid-Tier Holding CompanyMHC, the accounting system and other data prepared by the Mid-Tier Holding CompanyMHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date Date.
(k) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇ LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of First Eastern Bankshares Corporation as of December 31, 2015 and 2014, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the 1933 Act and the related rules and regulations adopted by the Commission; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) reading of the unaudited interim latest available consolidated financial statements of the Mid-Tier Holding Company First Eastern Bankshares Corporation prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derivedFirst Eastern Bankshares Corporation, a reading of the minutes of the meetings of the Boards of Directors and committees or Board of Trustees, as applicable, of each of the Primary ▇▇▇▇▇▇▇▇ Parties and consultations with officers of the Mid-Tier Holding Company First Eastern Bankshares Corporation responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such the audited consolidated financial statements and any unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of Act and the Commission, related rules and GAAP regulations adopted by the Commission applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest unaudited interim consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of First Eastern Bankshares Corporation, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the allowance for loan losses, total deposits or total equity of First Eastern Bankshares Corporation at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of First Eastern Bankshares Corporation, which are subject to the internal controls of First Eastern Bankshares Corporation, the accounting system and other data prepared by First Eastern Bankshares Corporation, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(kl) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by ▇▇▇▇▇▇ LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (ii) of subsection (i) to be a date specified in the letter required by this subsection (j) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(m) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary ▇▇▇▇▇▇▇▇ Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Massachusetts Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(mn) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shlet
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, subject to the condition that all representations and warranties of the Primary United Community Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct correct, the condition that the United Community Parties shall have performed, in all material respects, the condition that the Primary Parties shall have performed all of its their obligations hereunder to be performed on or before such dates, dates and to the following further conditions:
(a) At the Closing Date, the Primary United Community Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion MHC Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board OTS and the Commission or any other applicable regulatorgovernment authority.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application MHC Notice and the Holding Company Application shall have been approved by the Federal Reserve Board not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; OTS and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary United Community Parties, threatened by the Commission or any state authority, authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued issued, or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been therefor initiated or, to the knowledge of the Primary United Community Parties, threatened by the Commission or any state authority; (vi) no order suspending the ConversionOTS, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending orCommission, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state governmental authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the . The Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany.
(c) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent, to the effect that:
(i) Concurrently Upon consummation of the Reorganization, the Company will be duly incorporated and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Bank is a validly existing federally chartered mutual savings association, and upon consummation of the Reorganization, the Bank will become a validly existing federally chartered stock savings association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the OTS (or valid waivers granted it by the OTS from such rules and regulations); all of the capital stock of the Bank to be outstanding immediately following the completion of the Reorganization will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Company, free and clear, to such counsel’s Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member in good standing of the Federal Home Loan Bank of Indianapolis. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel’s Actual Knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(iv) Upon consummation of the Reorganization, United Community MHC will be duly organized and validly existing as a corporation under the laws of the United States with corporate power and authority to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(a) Upon consummation of the Reorganization and the issuance of the Shares immediately upon completion of the Reorganization, under the terms of the approval order of the OTS, in an amount as described in the Prospectus, the authorized, issued and outstanding capital stock of United Community Bancorp will be within the range set forth in the Prospectus under the caption “Capitalization;” (b) no shares of Common Stock were issued and outstanding prior to the Closing Date; (c) the Shares subscribed for in the Offering have been validly authorized for issuance, and, when issued and delivered by United Community Bancorp pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the charter or bylaws of the Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel’s Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from United Community Bancorp to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The United Community Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the United Community Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the United Community Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law or public policy, including without limitation, the provisions of Sections 23A and 23B of the Federal Reserve Act, and subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors’ rights generally or the rights of creditors of savings associations or financial institutions, the accounts of which are insured by the FDIC, or their holding companies, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) Pursuant to the MHC Regulations, the Plan has been duly approved by the required vote of the Bank’s members, based upon the certificate of the inspector of election, and duly adopted by the required vote of the directors of United Community Bancorp and the Bank.
(viii) The Plan complies in all material respects with the MHC Regulations; the MHC Notice and the Holding Company Application have been approved by the OTS, and, to such counsel’s Actual Knowledge, no action has been taken or is pending or threatened by the OTS, Commission or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the Agent shall receive a letter from BDO USAoffer, LLP, dated as sale and issuance of the date hereof Shares and addressed the consummation of the Reorganization, except as may be required under the securities or “Blue Sky” laws of various jurisdictions as to which no opinion need be rendered. To such counsel’s Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the MHC Notice, the Prospectus or the Holding Company Application.
(ix) The Registration Statement has been declared effective under the 1933 Act, and to such counsel’s Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the Shares conform in all material respects to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within description thereof contained in the applicable rules of the Public Company Accounting Oversight Board (United States) Registration Statement and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply and the form of certificate proposed to be used to evidence the Shares complies with applicable laws.
(xi) At the time the MHC Notice, including the Prospectus and the Proxy Statement contained therein, was approved by the OTS, the MHC Notice, including the Prospectus and the Proxy Statement contained therein, as amended or supplemented, complied as to form in all material respects with the applicable accounting requirements of the MHC Regulations (other than the financial statements, notes to financial statements, financial tables or other financial and related published statistical data included therein and the appraisal valuation and the business plan, as to which counsel need express no opinion) and except as may be required under the rules and regulations of the SEC and the 1933 Act; NASD (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus as to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to roundingcounsel need express no opinion).
(jxii) At the time that the Registration Statement became effective and as of the Closing Date, the Agent shall receive a letter dated Registration Statement, including the Closing Date, addressed Prospectus (as amended or supplemented) (other than compliance with applicable technical standards regarding electronic format or with regard to the Agentfinancial statements, (i) confirming the statements made by BDO USAnotes to financial statements, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for tables or other financial and accounting mattersstatistical data included therein and the appraisal valuation and the business plan, nothing came as to their attention which caused them counsel need express no opinion), complied as to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies form in all material respects with the applicable requirements of the Conversion Regulations1933 Act and the rules and regulations promulgated thereunder, and (iii) further stating it being understood, however, that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation solely for the duration purpose of passing upon the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver compliance as to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus, counsel may assume that the statements made therein are correct and complete.
(oxiii) At To such counsel’s Actual Knowledge, there are no legal or prior governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) The information in the Prospectus under the captions “Summary— The Reorganization” and “Description of United Community Bancorp Capital Stock,” insofar as they purport to constitute a summary of the terms of the capital stock of the Company, including the Common Stock, and under the captions “Risk Factors – United Community MHC’s majority control of our common stock will enable it to exercise voting control over most matters put to a vote of stockholders and will prevent stockholders from forcing a sale or a second-step conversion transaction you may find advantageous,” “— Office of Thrift Supervision policy on remutualization transactions could prohibit acquisitions of United Community Bancorp, which may adversely affect our stock price,” “—We operate in a highly regulated environment and we may be adversely affected by changes in law and regulations,” “Our Dividend Policy,” “Regulation and Supervision,” “Federal and State Taxation,” “Restrictions on Acquisition of United Community Bancorp and United Community Bank” and, insofar as it describes the Reorganization process, “The Reorganization and Stock Offering,” to the Closing Dateextent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption “The Reorganization and Stock Offering—Material Income Tax Consequences” has been reviewed by such counsel and fairly describes the opinions rendered by them to the United Community Parties with respect to such matters.
(xv) The Company is not and, after giving effect to the offer and sale of the Shares and the application of the net proceeds as described in the Prospectus under the caption “Use of Proceeds,” will not be required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(xvi) To such counsel’s Actual Knowledge, none of the United Community Parties is in violation of its Charter and Bylaws or in default or violation under any agreement filed as an exhibit to the Registration Statement, except for such defaults or violations which would not have a Material Adverse Effect on the United Community Parties taken as a whole; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a), to such counsel’s Actual Knowledge, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance under any agreement filed as an exhibit to the Registration Statement, (b) result in any violation of the provisions of the Charter or Bylaws of the United Community Parties, or (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the securities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or the Nasdaq National Market System need be rendered) or, to such counsel’s Actual Knowledge, order or court order, writ, injunction or decree.
(xvii) The Charter and Bylaws of each of United Community MHC, United Community Bancorp and United Community Bank comply in all material respects with the laws of the United States.
(xviii) To such counsel’s Actual Knowledge, none of the United Community Parties is in violation of any directive from the OTS to make any material change in the method of conducting its respective business.
(xix) To such counsel’s Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the MHC Notice, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the MHC Notice, the Registration Statement or the Prospectus. The description in the MHC Notice, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown. The opinion may be limited to matters governed by the laws of the United States. In rendering such opinion, such counsel may rely as to matters of fact on certificates of responsible officers of the United Community Parties and public officials; provided copies of any such certificates are delivered to Agent shtogether with the opinion to be rendered hereunder. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the term “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.” For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of any of the United Community Parties shall have received a copy of such proceedings order, stop order or action. . Such opinion may be limited to present statutes, regulations and judicial interpretations and
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or OTS, the Commission, and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application approved by the OTS, and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ best of the Company's and the Association's knowledge, threatened by the Commission, the Federal Reserve Board OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLPSilver, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, L.L.P., counsel for the Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(ii) The Association has been incorporated and is validly existing as a federal mutual savings and loan association in good standing under the laws of the United States and upon the consummation of the Conversion will become a duly organized and validly existing federal stock savings and loan association in good standing under the laws of the United States, in both instances with full corporate power and authority to conduct its business and own its property as described in the Registration Statement and Prospectus; and upon the consummation of the Conversion, all of the issued and outstanding capital stock of the Association will be duly authorized and, upon payment therefor, will be validly issued, fully paid and nonassessable and all such capital stock will be owned of record, and to the best of such counsel's knowledge, beneficially, by the Company, free and clear of any liens, encumbrances or claims.
(iii) The Association is a member of the FHLB-Cincinnati. The deposit accounts of the Association are insured by the FDIC under the SAIF up to the maximum amount allowed under law and, to the best of such counsel's knowledge, no proceedings for the termination or revocation of such membership or insurance are pending or threatened.
(iv) The description of the liquidation account as set forth in the Prospectus andunder the caption "The Conversion-Effects of Conversion to Stock Form on Depositors and Borrowers of the Association-Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurate in their opinion, all material respects.
(v) No shares of Common Stock have been issued prior to the Closing Date; at the time of the consummation of the Conversion, the Shares subscribed for pursuant to the Prospectus became will have been duly and validly authorized for final useissuance, and when issued and delivered by the Prospectus did not contain any untrue statement of a material fact or omit Company pursuant to state a material fact necessary in order to make the statements therein, in light Plan against payment of the circumstances under which they were made, not misleading; (ii) since the respective dates consideration calculated as of which information is given set forth in the Registration Statement, the General Disclosure Package Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable. The issuance of the Shares will not be subject to preemptive rights and the terms and provisions of the Shares conform to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable legal requirements.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly and validly authorized by all necessary action on the part of the Company and the Association; and this Agreement is a valid and binding obligation of the Company and the Association, enforceable against the Company and the Association in accordance with its terms, except to the extent rights to indemnity and contribution thereunder may be limited under applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies or by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law; and to the best of our knowledge, the execution and delivery of the Agreement, and the consummation of the transactions contemplated thereunder, will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under or result in the creation or imposition of any lien, charge or encumbrance that should would have a material adverse effect on the financial condition, results of operations or business of the Company and the Association taken as a whole, upon any property or assets of the Company or the Association pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the Association is subject (other than the establishment of a liquidation account), nor will such execution or delivery result in any violation of the provisions of the articles of incorporation, charter, or bylaws of the Company or the Association, or any applicable Delaware law, act or regulation (except that no opinion need be rendered with respect to the securities or Blue Sky Laws of various jurisdictions or the rules and regulations of the NASD).
(vii) The Conversion Application has been approved by the OTS and the Prospectus and the proxy statement of the Association have been set forth authorized for use by the OTS. The OTS has approved the Holding Company Application, and the purchase by the Company of all of the issued and outstanding capital stock of the Association has been authorized by the OTS. To the best of such counsel's knowledge, no action is pending or threatened to revoke any such authorizations or approvals.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company and the Association and approved by the eligible voting members of the Association in an amendment or supplement accordance with the Conversion Regulations and the applicable requirements of the Association's charter and bylaws.
(ix) Subject to the Prospectus that satisfaction of the conditions to the OTS approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any governmental agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the Blue Sky Laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has not been so set forthissued under the 1933 Act or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission or any other governmental agency.
(xi) At the time the Conversion Application, including specificallythe Prospectus contained therein, but without limitationwas approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations, the HOLA, and those of any material adverse change in other applicable federal or state laws (other than the conditionfinancial statements, the notes thereto, financial or otherwisetables, or and other financial, statistical and appraisal data including therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (except as to financial statements, the notes thereto, financial tables, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the earnings, capital, properties, business or prospects requirements of the Primary Parties independently1933 Act and the 1933 Act Regulations, or (ii) the Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business 1933 Act and the conditions set forth in this Section 8 have been satisfied1933 Act Regulations; and (iii) the representations Registration Statement has been filed pursuant to the appropriate Commission form and warranties has been declared effective by the Commission.
(xiii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in Section 4 the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) To the best of such counsel's knowledge, there are true no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto and correct with the same force descriptions thereof are accurate.
(xv) To the best of such counsel's knowledge, the Conversion Application, the Holding Company Application and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied Plan comply in all material respects with all material agreements applicable laws, rules, regulations and satisfied decisions and orders, including, without limitation, the HOLA, the Conversion Regulations, or any requirements of Delaware law; the Plan and the transactions contemplated by this Agreement have been duly approved and authorized by all conditions on their part to be performed or satisfied at or prior requisite corporate and regulatory action; to the Closing Datebest of such counsel's knowledge, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated orissued by the OTS, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, other authority to suspend the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending orProspectus, and, to the knowledge best of the Primary Partiessuch counsel's knowledge, no action for such purposes has been instituted or threatened by the Federal Reserve Board OTS, the Commission, or any other federal or state authority; and (vii) authority and, to the knowledge best of the Primary Partiessuch counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board OTS, the Commission, as applicable, approving or any other applicable regulator approving taking no objection to the Plan, the Conversion Application, the Holding Company Application, the Prospectus, or the Conversion.
(gxvi) None To the best of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statementsuch counsel's knowledge, the General Disclosure Package Company and Prospectusthe Association have obtained all licenses, any material loss or interference with its business from fire, explosion, flood or permits and other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than authorizations currently required for the conduct of their respective businesses as set forth described in the Registration Statement and the Prospectus, and since except for licenses, approvals or authorizations the respective dates as failure of which information is given to have would not result in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no a material adverse change in the financial condition, results of operations operation or the business of the Primary Parties considered Company and the Association taken as one enterprisea whole, from and as all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Association are in all material respects complying therewith.
(xvii) To the best of such counsel's knowledge, neither the Company nor the Association is in violation of its articles of incorporation, charter or bylaws, or in default or violation in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Association is a party or by which the Company or the Association or any of their property may be bound in any respect that would have a material adverse effect on the financial condition or results of operations of the latest date Company or the Association taken as a whole.
(xviii) To the best of which such condition counsel's knowledge, neither the Company nor the Association is set forth in violation of any directive from the Prospectus, other than transactions referred to OTS or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) FDIC to make any material change in the method of conducting their business with which it its respective business.
(xix) The information in the Prospectus under the captions "Regulation," "The Conversion -- Income Tax Consequences," "Restrictions on Acquisitions of Stock and Related Takeover Defensive Provisions," "Description of Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has not complied been reviewed by such counsel and is correct in all material respects (which directionrespects. In giving such opinion, if anysuch counsel may rely as to all matters of fact on certificates of officers or directors of the Company and the Association and certificates of public officials. For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company or the Association shall have been disclosed received a copy of such proceedings, order, stop order or action. In addition, such counsel shall provide a letter stating that during the preparation of the Registration Statement, Conversion Application and the Prospectus, counsel participated in conferences with certain officers and other representatives of the Association and the Company, representatives of the Agent, counsel to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none , representatives of the Primary Parties shall have been independent public accountants for the Association and the Company at which the contents of the Registration Statement, the Conversion Application and the Prospectus and related matters were discussed and, although they are not passing upon and do not assume the responsibility for the accuracy, completeness or fairness of the statements contained in default the Registration Statement, the Conversion Application and Prospectus, on the basis of the foregoing (nor shall an event have occurred whichrelying as to factual matters on certificates of officers and other factual representations by the Association and the Company), with notice nothing has come to such counsel's attention that caused them to believe that the Registration Statement at the time it was declared effective by the SEC or lapse the Prospectus as of time its date and as of the Closing Date, contained or both, would constitute contains any untrue statement of a default) under any provision of any agreement material fact or instrument relating omitted or omits to state any material outstanding indebtedness; (iv) no actionfact required to be stated therein or necessary to make the statements therein, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agencythe light of the circumstances under which they were made, not disclosed misleading (it being understood that such counsel shall express no comment or opinion with respect to the financial statements, schedules and other financial information and statistical and stock valuation data included, or statistical methodology employed, in the Registration Statement, Conversion Application and Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties).
(i2) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLPThe favorable opinion, dated as of the date hereof and addressed to Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Indianapolis, Indiana, the Agent: (i) confirming that BDO USA's counsel, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as with respect to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus matters as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At require. Such opinion may rely upon the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shopinions
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Wolverine Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Wolverine Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Wolverine Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Wolverine Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Holding Company and the Bank, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit D.
(e) A blue sky memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Wolverine Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Wolverine Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Wolverine Parties independently, or of the Primary Wolverine Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Wolverine Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Primary Wolverine Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Primary Wolverine Parties, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the best knowledge of the Primary Wolverine Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(g) None of the Primary Wolverine Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Wolverine Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Wolverine Parties shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Wolverine Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Wolverine Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Wolverine Parties, threatened against the any of the Primary Wolverine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingWolverine Parties taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Wolverine Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USABKD, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USABKD, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Bank Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142009 and 2008, June 30, 2014 and June 30, 2013 and for each of the six months years in the two-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Bank Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Wolverine Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USABKD, LLP in the letter delivered by it pursuant to subsection (ig) of this Section 8, the “specified date” referred to in clause (i) of subsection (ih) to be a date specified in the letter required by this subsection (ih) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Wolverine Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates from the Federal Reserve Board OTS evidencing the valid existence of the MHC Holding Company and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (viv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Indianapolis evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(on) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Wolverine Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Wolverine Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Wolverine Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, ------------------------------------- hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all of its their respective obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion Reorganization in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)OTS Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon them by the Federal Reserve Board or OTS, the Commission and any other applicable regulatorstate securities agency.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application Applications shall have been approved by the OTS and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. p.m., Eastern Time, on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion Reorganization shall have been issued or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ Breyer & Aguggia LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) At The Holding Company has been duly incorporated and is validly existing under the laws of the State of Indiana with full corporate power and authority to conduct its business and own its property as described in the Prospectus; the Holding Company is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to so qualify would have a material adverse effect on the financial condition, results of operations or the business of the Primary Parties, taken as a whole; and upon consummation of the Reorganization, all of the Shares issued and outstanding shall be duly authorized and, upon payment therefor, shall be validly issued, fully paid and non-assessable.
(ii) The Bank is validly existing as a federally chartered savings bank in capital stock form of organization under the laws of the United States, with full corporate power and authority to conduct its business and own its property as described in the Prospectus; the Bank is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to so qualify would have a material adverse effect on the financial condition, results of operations or the business of the Bank; and upon consummation of the Reorganization, all of the issued and outstanding capital stock of the Bank shall be duly authorized and, upon payment therefor, shall be validly issued, fully paid and non-assessable, and all of such capital stock shall be owned of record and, to such counsel's knowledge, beneficially by the Holding Company, free and clear of any liens, encumbrances or claims.
(iii) The Bank is a member of the FHLB-Indianapolis; the deposit accounts of the Bank are insured by the FDIC under the SAIF up to the maximum amount allowed under law; and, to such counsel's knowledge, no proceedings for the termination or revocation of such membership or insurance are pending or threatened.
(iv) The MHC is validly existing as a federally chartered mutual holding company under the laws of the United States, with full corporate power and authority to conduct its business and own its property as described in the Prospectus.
(v) Upon consummation of the Reorganization, the authorized, issued and outstanding capital stock of the Holding Company shall be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Holding Company which will be canceled as part of the Reorganization, no shares of Common Stock have been issued prior to the Closing Date, ; the Agent shall have received the favorable opinion, dated as issuance of the Closing Date Shares is not subject to statutory or regulatory preemptive rights except as contemplated by the Conversion Regulations; the terms and addressed provisions of the Shares conform to the Agent description thereof contained in the Prospectus; and for its benefitthe form of certificate used to evidence the Common Stock complies with applicable law. To such counsel's knowledge, upon the issuance of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPthe Shares, special counsel for the Agent, in form and substance as reasonably acceptable good title to the AgentShares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(evi) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to The Plan has been duly adopted by the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing vote of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer directors of each of the Primary Parties in form as required by the OTS Regulations and substance reasonably satisfactory to approved by the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light eligible voting members of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package MHC and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects eligible voting stockholders of the Primary Parties independently, or of Bank in accordance with the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business OTS Regulations and the conditions set forth in this Section 8 have MHC's and the Bank's respective charter and bylaws.
(vii) The Registration Statement has been satisfied; (iii) declared effective under the representations 1933 Act and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement thereof has been issued or proceedings therefor initiated or, to the knowledge of the Primary Partiessuch counsel's knowledge, threatened by the Commission or any state authorityother governmental agency.
(viii) The OTS Applications and the Plan have been approved by the OTS and the Prospectus and the proxy statements of the MHC and the Bank have been authorized for use by the OTS; (vi) to such counsel's knowledge, no order suspending has been issued by the Conversion, OTS or the Offering Commission to suspend the Offerings or the use of the Prospectus Prospectus, and no action for such purposes has been issued and no proceedings for that purpose are pending orinstituted or threatened; and, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Partiessuch counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the ConversionPlan, the OTS Applications or the Prospectus, and no action is pending or, to such counsel's knowledge, threatened to revoke any such authorizations or approvals.
(gix) None At the time the OTS Applications, including the Prospectus contained therein, were approved by the OTS, the OTS Applications, including the Prospectus contained therein (other than the financial statements, the notes thereto, financial tables, and other financial, statistical and appraisal data included therein or omitted therefrom, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the OTS Regulations.
(x) At the time the Registration Statement became effective, the Registration Statement, including the Prospectus contained therein (other than the financial statements, the notes thereto, financial tables, and other financial, statistical and appraisal data included therein or omitted therefrom, as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xi) To such counsel's knowledge, the Primary Parties have conducted the Reorganization in all material respects in accordance with the Plan, the 1933 Act, the 1933 Act Regulations, the OTS Regulations, and the HOLA. The Plan complies in all material respects with the HOLA and the OTS Regulations.
(xii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Primary Parties; and this Agreement is a valid and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as the enforceability thereof may be limited (a) by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (b) by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, (c) laws relating to the safety and soundness of insured depository institution and their affiliates, or (d) to the extent that the provisions of Section 8 and 9 hereof may be unenforceable as against public policy or by applicable law, including without limitation Sections 23A and 23B of the Federal Reserve Act, as amended.
(xiii) The execution, delivery and performance of this Agreement and the incurrence of the obligations set forth herein by the Primary Parties do not (a) result in any violation of the HOLA or the OTS Regulations, (b) conflict with or violate the charter and bylaws of the MHC or the Bank or the articles of incorporation and bylaws of the Holding Company, or (c) constitute a breach of, or default under (or an event which, with notice or lapse of time or both, would constitute a default under), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Primary Parties shall have sustainedpursuant to any contract, since the date of the latest financial statements included in the Registration Statementindenture, the General Disclosure Package and Prospectusmortgage, any material loss or interference with its business from fireloan agreement, explosionnote, flood lease or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than instruments filed as set forth in an exhibit to the Registration Statement and or the ProspectusOTS Applications to which any of the Primary Parties is a party or by which any of the Primary Parties may be bound, and since or to which any of the respective dates as property or assets of which information any of the Primary Parties is given subject that, individually or in the Registration Statement and the Prospectus, there shall not aggregate would have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no a material adverse change in effect on the financial condition, results of operations or business of the Primary Parties considered Parties, taken as one enterprise, from and as a whole.
(xiv) Subject to the satisfaction of the latest date conditions to the OTS approval of the Reorganization, no further approval, registration, authorization, consent or other order of or notice to any governmental agency is required with respect to any of the Primary Parties in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Reorganization, except as may be required under the Blue Sky Laws of various jurisdictions (as to which no opinion need be rendered).
(xv) To such condition is set forth counsel's knowledge, there are no legal or governmental proceedings pending or threatened against any of the Primary Parties or principals of any of the Primary Parties that are required to be disclosed in the Prospectus other than those disclosed therein (provided that for this purpose such counsel need not regard any litigation or governmental proceeding to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Primary Parties or to such counsel a present intention to initiate such litigation or proceeding).
(xvi) The descriptions in the OTS Applications and the Registration Statement of the contracts, indentures, mortgages, loan agreements, notes, leases or other instruments filed as exhibits thereto are accurate in all material respects and fairly present the information required to be shown.
(xvii) To such counsel's knowledge, the Bank has obtained all Federal banking licenses, permits and authorizations currently required for the conduct of its business as described in the Prospectus, other than transactions referred except for such licenses, approvals or authorizations the failure of which to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any would not result in a material adverse change in the method financial condition, results of conducting their operation or the business with which it has not complied of the Bank, and, to such counsel's knowledge, all such licenses, permits and other governmental authorizations are in full force and effect, and, to such counsel's knowledge, the Bank is in all material respects in compliance therewith.
(which directionxviii) To such counsel's knowledge, if anythe MHC and the Bank are not in violation of their respective charter and bylaws, shall have been disclosed and the Holding Company is not in ▇▇▇▇▇▇▇ ▇▇▇▇ & Company ____________, 1998 Page 27 violation of its articles of incorporation and bylaws nor, to such counsel's knowledge, is either the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of MHC or the Primary Parties shall have been Bank in default (nor shall an has any event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision in the performance or observance of any agreement obligation, agreement, covenant or instrument relating to condition contained in any material outstanding indebtedness; (iv) no actioncontract, suit indenture, mortgage, loan agreement, note, lease or proceeding, at law other instrument filed as an exhibit to the Registration Statement or in equity the OTS Applications to which the MHC or before the Bank is a party or by which the MHC or the Bank or any federal of its property may be bound in any respect that would have a material adverse effect upon the financial condition, results of operations or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge business of the Primary Parties, threatened against taken as a whole.
(xix) To such counsel's knowledge, neither the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its business.
(xx) The information in the Prospectus under the captions "Regulation," "The Conversion," "Comparison of Stockholders' Rights," "Restrictions on Acquisition of the Holding Company," "Taxation-- Federal Taxation" and "Description of Capital Stock of the Holding Company," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate and complete in all material respects. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Primary Parties or affecting any and certificates of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected public officials. All references to have a Material Adverse Effect; (v) no Governmental Entity "to such counsel's knowledge" in such opinion shall have instituted any proceeding for the purpose meaning of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions "actual knowledge" as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as American Bar Association Legal Opinion Accord (1991) (the Agent may reasonably request; and they have found "Accord"). For purposes of such amounts and percentages opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued, and no action shall be deemed to be instituted unless, in each case, a director or executive officer of a Primary Party, or their counsel, shall have received a copy of such proceedings, order, stop order or action. Such counsel may assume that any agreement therewith (subject is the valid and binding obligation of any parties to rounding).
(j) At such agreement other than the Closing DatePrimary Parties. In addition, such counsel shall provide a letter stating that during the preparation of the Registration Statement, the Agent shall receive a letter dated OTS Applications and the Closing DateProspectus, addressed such counsel participated in conferences with certain officers and other representatives of the Primary Parties, representatives of the Agent, counsel to the Agent, (i) confirming representatives of the independent public accountants for the Primary Parties at which the contents of the Registration Statement, the OTS Applications and the Prospectus and related matters were discussed and, although they are not passing upon and do not ▇▇▇▇▇▇▇ ▇▇▇▇ & Company ____________, 1998 Page 28 assume the responsibility for the accuracy, completeness or fairness of the statements made by BDO USA, LLP contained in the letter delivered by it pursuant to subsection (i) of this Section 8Registration Statement, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date OTS Applications and (ii) stating in effect thatProspectus, on the basis of certain agreed upon procedures the foregoing (but not an audit in accordance with standards relying as to factual matters on certificates of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared officers and other factual representations by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting mattersParties), nothing came has come to their such counsel's attention which that caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in that the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements as of the Commission, its date and GAAP applied on a basis substantially consistent with that as of the audited financial statements included in the Prospectus.
(k) At the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the Holding Company shall receive a letter from RP Financialstatements therein, LC., dated in the Closing Date (i) confirming that said firm is independent light of the Primary Parties circumstances under which they were made, not misleading (it being understood that such counsel shall express no comment or opinion with respect to the financial statements, schedules and is experienced other financial information and expert statistical and stock valuation data included or omitted from, or statistical methodology employed, in the area of corporate appraisals within Registration Statement, the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, OTS Applications and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectProspectus).
(l2) To the extent a sale or other disposition or transfer The favorable opinion, dated as of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent sh
Appears in 1 contract
Sources: Agency Agreement (First Capital Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to sell the Shares hereunder are subject to be delivered at (i) the accuracy of the representations and warranties on the part of the Company in all material respects on the date hereof, any applicable date referred to in Section 3(u) and as of each Closing Date, are subject, to (ii) the extent not waived in writing performance by the Agent, to the condition that all representations and warranties of the Primary Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties shall have performed all Company of its obligations hereunder to be performed on or before such dates, in all material respects and to (iii) the following further conditions:
(a) At the Closing Date, the Primary Parties The Agent shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except received prior to the extent waived initial commencement of sales of Shares hereunder and at every other date specified in Section 3(v) hereof, an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for th▇ ▇▇▇▇▇ny, or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent co▇▇▇▇▇ ▇ati▇▇▇▇tory to the Conversion imposed upon them by Agent, addressed to the Federal Reserve Board or any other applicable regulatorAgent, dated as of such dates and in form and substance satisfactory to the Agent, opining as to the matters set forth in Exhibit A hereto.
(b) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(w) hereof, an opinion of Miles & Stockbridge, P.C., special counsel for the Company, or o▇▇▇▇ counsel satisfactory to the Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, covering matters of Maryland law and opining as to the matters set forth in Exhibit B hereto.
(c) The Agent shall have received from the independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(x) hereof, letters, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent.
(d) The Company shall have furnished prior to the initial commencement of sales of Shares hereunder evidence reasonably satisfactory to the Agent and their counsel that the Registration Statement shall have been declared effective become effective.
(e) No amendment or supplement to the Registration Statement or Prospectus, including documents incorporated by the Commission and the Conversion Application and the Holding Company Application reference therein, shall have been approved by filed to which the Federal Reserve Board not later than 5:30 p.m. on Agent shall have objected in writing.
(f) Prior to the date initial commencement of this Agreement, or with the Agent’s consent at a later time sales of Shares hereunder and date; and at the as of each Closing Date, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authoritypost-effective amendment thereto, and no order directed at any document incorporated by reference therein and no order preventing or other action suspending the authorization use of the any Prospectus or the consummation of the Conversion shall have has been issued or proceedings therefore initiated or, to the Primary Parties’ knowledge, threatened by the Commission, the Federal Reserve Board or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as and no suspension of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration qualification of the Shares under applicable state securities law.
(f) At the Closing Datefor offering or sale in any jurisdiction, the Agent shall receive a certificate or of the Chief Executive Officer and the Chief Financial Officer initiation or threatening of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as any proceedings for any of such Closing Datepurposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the effect that: statements therein, not misleading; and (iiii) they have carefully examined the Prospectus andand all amendments or supplements thereto, in their opinionor modifications thereof, at the time the Prospectus became authorized for final useif any, the Prospectus did shall not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None Prior to the initial commencement of the Primary Parties shall have sustained, since the date sales of the latest financial statements included in the Registration StatementShares hereunder and as of each Closing Date, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there NASD shall not have been raised any Material Adverse Effect that is in objections with respect to the Agent’s reasonable judgment sufficiently material fairness and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery reasonableness of the Shares on the sales agency terms and in the manner contemplated in the Prospectusarrangements.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion initial commencement of the Agent, there shall have been no material adverse change in the financial condition, results sales of operations or business of the Primary Parties considered as one enterprise, from Shares hereunder and as of the latest date as of which such condition is set forth in the Prospectuseach Closing Date, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered approved for offering and sale or exempted therefrom under listing on the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesNYSE.
(i) Concurrently with Prior to the execution initial commencement of this Agreementsales of Shares hereunder and as of each Filing Date, and each other date referred to in Section 3(u) hereof, the Company shall have delivered to the Agent a certificate of two principal executive officers of the Company certifying to the matters set forth in Exhibit C.
(j) Prior to the initial commencement of sales of Shares hereunder and on each Filing Date, the Manager shall receive a letter from BDO USA, LLP, dated have furnished the Agent such documents and certificates as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus Agreement as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At , including the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectuscertificate attached as Exhibit D hereto.
(k) At All filings with the Closing Date, Commission required by Rule 424 under the Holding Company Securities Act to have been filed shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals have been made within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared applicable time period prescribed for such filing by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effectRule.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of Between the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form execution of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board this Agreement and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, Closing Date there shall not have occurred any downgrading, or any notice or announcement shall have been given or made of the following; (i) a suspension any intended or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) potential downgrading or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, any review or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities possible change that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedoes not indicate an improvement, in the Agent’s reasonable judgmentrating accorded any securities of or guaranteed by the Company or any Subsidiary by any "nationally recognized statistical rating organization", to make it impracticable or inadvisable to proceed with as that term is defined in Rule 436(g)(2) under the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusSecurities Act.
(om) At The Company shall perform such of its obligations under this Agreement as are to be performed by the terms hereof at or prior to before the time required for such performance and each Closing Date, counsel to the Agent sh.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of -------------------------------------- the Agent hereunder, as to the Shares to be delivered at the Closing Date, hereunder are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board OTS, the SEC or any other applicable regulatorgovernmental authority.
(b) The Registration Statement shall have been declared effective by the Commission SEC and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to the knowledge of the Primary Parties, or threatened by the Commission SEC or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore therefor initiated or, to the Primary Parties’ Company's or the Bank's knowledge, threatened by the CommissionOTS, the Federal Reserve Board SEC or any other federal or state governmental authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇Malizia, Spidi & Fisch, PC, special counse▇ ▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this AgreementCompany and the Bank, in form and substance as attached hereto as Exhibit C.to the effect that:
(di) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Maryland and has full corporate power and authority to own, lease and operate its respective properties and to conduct its business as described in the Registration Statement and the Prospectus, and the Company is qualified to do business as a foreign corporation in the Commonwealth of Kentucky.
(ii) The Bank is a validly existing federally chartered savings bank in mutual form duly authorized to conduct its business and own, lease and operate its properties as described in the Registration Statement and the Prospectus. All of the capital stock of the Bank to be outstanding upon completion of the Conversion will be duly authorized and will be validly issued, fully paid and non-assessable and will be owned by the Company, to such counsel's knowledge, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The Bank is a member in good standing of the FHLB-Cincinnati. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion - Effects of Conversion to Stock Form on Depositors and Borrowers of Community First Bank - Liquidation Account" to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(iv) Immediately following the consummation of the Conversion, the authorized, issued and outstanding Common Shares of the Company will be within the range set forth in the Prospectus under the captions "Capitalization," and except for shares issued upon incorporation of the Company, no Common Shares have been issued prior to the Closing Date; the Shares subscribed for pursuant to the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan in exchange for payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights; and the terms and provisions of the Common Shares conform in all material respects to the description thereof contained in the Prospectus. The form of certificate used to evidence the Common Shares complies with applicable laws. To such counsel's knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof in exchange for payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(v) The Company and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company and the Bank; and this Agreement is a valid and binding obligation of the Company and the Bank, enforceable against the Company and the Bank in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including without limitation the provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect of availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vi) The Conversion Application and Holding Company Application have been approved by OTS and the Prospectus and Members' Proxy Statement have been authorized for use by the OTS, and no action has been taken or is pending, or to the best of such counsel's knowledge, none is pending or threatened to revoke any such authorization or approval.
(vii) Pursuant to the Conversion Regulations, the Plan has been approved by the Bank's members and duly adopted by the required vote of the directors of the Company and Bank.
(viii) Subject to the satisfaction of the conditions to the OTS of the Conversion, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Common Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or The Nasdaq Stock Market (as to which no opinion need by rendered).
(ix) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's knowledge, threatened by the SEC.
(x) At the Closing Datetime the Conversion Application, including the Prospectus and Members' Proxy Statement contained therein, was approved by the OTS, the Agent shall have received Conversion Application, including the favorable opinionProspectus and Members' Proxy Statement contained therein, dated complied as to form in all material respects with the requirements of the Closing Date Conversion Regulations, the 1934 Act Regulations, federal and addressed state law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agentwhich no opinion need be rendered).
(exi) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to At the Offeringtime that the Registration Statement became effective, including Agent’s participation (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, shall have as to which no opinion need be rendered), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiii) To such counsel's knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xiv) The Plan complies in all material respects with all applicable laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; no order has been furnished prior issued by the OTS, the SEC or any other governmental authority to suspend the mailing Offering or the use of the Prospectus, and no action for such purposes has been instituted, or to such counsel's knowledge, threatened by the OTS, the SEC or any other governmental authority and, to such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus.
(xv) To such counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company and the Bank are in all material respects complying therewith.
(xvi) To such counsel's knowledge, neither the Company nor the Bank is in violation of its articles of incorporation, charter or bylaws, as appropriate or, to such counsel's knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Company and the Bank on a consolidated basis; the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein do not (a) to such counsel's knowledge, conflict with or constitute a copy thereof addressed breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to Agent any material contract, indenture, mortgage, loan agreement, note, lease or upon other instrument to which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall the Company or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company or the Bank are subject (other than the establishment of the liquidation account), (b) result in any violation of the provisions of the articles of incorporation, charter or bylaws, as appropriate, of the Company or the Bank, or (c) result in any violation of any applicable federal or state law, act, regulation (except that no opinion with respect to the Agent may relysecurities and blue sky laws of various jurisdictions or the rules or regulations of the NASD and/or The Nasdaq Stock Market need be rendered) or order or court order, writ, injunction or decree.
(xvii) The Company's Articles of Incorporation and Bylaws comply in all material respects with the laws of the State of Maryland. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities Bank's Charter and Bylaws comply in all material respects with federal law.
(fxviii) At To such counsel's knowledge, neither the Closing DateCompany nor the Bank is in violation of any directive from the OTS and the SEC to make any material change in the method of conducting its respective business.
(xix) The information in the Prospectus under the captions "Dividends," "The Conversion," "Regulation," "Taxation," "Future Stock Benefit Plans," "Restrictions on Acquisitions of the Company," and "Description of Capital Stock," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Conversion process in the Prospectus under the caption "The Conversion" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and fairly describes such process in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion - Effects of Conversion to Stock Form on Depositors and Borrowers of Community First Bank - Tax Effects" have been reviewed by such counsel and fairly describes the opinions rendered by them to the Company and the Bank with respect to such matters. In addition, such counsel shall state that during the preparation of the Conversion Application, the Agent shall receive a certificate Registration Statement, the Prospectus, and the Members' Proxy Statement, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the Company and the Bank, at which conferences the contents of the Chief Executive Officer and Conversion Application, the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final useRegistration Statement, the Prospectus did and the Members' Proxy Statement, and related matters were discussed and, while such counsel have not contain confirmed the accuracy or completeness of or otherwise verified the information contained in the Conversion Application, the Registration Statement, the Prospectus and Members' Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Company and the Bank), nothing has come to their attention that would lead them to believe that the Conversion Application, the Registration Statement, the Prospectus or the Members' Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no view need be rendered) contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since . In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the respective dates as of which information is given in the Registration Statement, the General Disclosure Package Company and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects Bank and certificates of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable public officials. Such counsel's opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties considered as one enterprise, from and as of the latest date as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, limited to the knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced matters governed by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USA, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and the 1933 Act; (ii) stating that (A) during the period from the date of the recent developments financial information included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding Company, other than normal deposit fluctuations for the Mid-Tier Holding Company, or decreases in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and (B) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system and other data prepared by the Mid-Tier Holding Company, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shfedera
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application Form AC and the Holding Company Application shall have been approved by the Federal Reserve Board OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, or to the knowledge of the Primary PartiesCompany or the Bank, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company’s and the Bank’s knowledge, threatened by the Commission, the Federal Reserve Board OTS, the FDIC or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, P.C., special counsel for the Company and the Bank, in form and substance as attached hereto as Exhibit C.D.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(fe) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties Company and the Bank in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Parties independently, or of Company and the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business Bank and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank independently, or of the Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Parties have Company and the Bank complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary PartiesCompany and the Bank, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary PartiesCompany and the Bank, threatened by the Federal Reserve Board OTS or any other federal or state authority; and (viiviii) to the best knowledge of the Primary PartiesCompany and the Bank, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator OTS approving the Conversion.
(gf) None of Neither the Primary Parties Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hg) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Primary Parties Company and the Bank considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of neither the Primary Parties Company nor the Bank shall have received from any Governmental Entity the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Company and the Bank taken as a Material Adverse Effectwhole; (iii) none of neither the Primary Parties Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary PartiesCompany and the Bank, threatened against any of the Primary Parties Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for materially and adversely affect the purpose financial condition, results of enjoining operations or prohibiting the consummation business of the Conversion or Offering Company and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or OfferingBank taken as a whole; and (viv) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary PartiesCompany and the Bank.
(ih) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAMcGladrey & ▇▇▇▇▇▇, LLP, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAMcGladrey & ▇▇▇▇▇▇, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 20142008 and 2007, June 30, 2014 and June 30, 2013 and for each of the six months years in the three-year period ended December 31, 2014 and the years ended June 30, 2014 and 20132008, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC OTS and the 1933 Act; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt borrowings of the Mid-Tier Holding CompanyBank, other than normal deposit fluctuations for the Mid-Tier Holding Company, Bank; or decreases (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity net assets of the Mid-Tier Holding Company and (B) during the period from Bank at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (ih), they have compared with the general accounting records of the Mid-Tier Holding CompanyBank, which are subject to the internal controls of the Mid-Tier Holding CompanyBank, the accounting system and other data prepared by the Mid-Tier Holding CompanyBank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(ji) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAMcGladrey & ▇▇▇▇▇▇, LLP in the letter delivered by it pursuant to subsection (ih) of this Section 8, the “specified date” referred to in clause (iii) of subsection (ih) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(kj) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Conversion Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Conversion Code of Federal Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(mk) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator OTS approving the Conversion Application and Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared declaring the Registration Statement effective; (iii) certificates a certificate from the Federal Reserve Board OTS evidencing the valid existence of the MHC and the Mid-Tier Holding CompanyBank; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viv) a certificate from the FHLB-New York Dallas evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viiivi) such other documents and certificates as the Agent may reasonably request.
(nl) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adversedecline, in the Agent’s reasonable judgment, to make makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(om) At or prior to the Closing Date, counsel to the Agent shshall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association herein are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have performed all of its their obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board and any other applicable regulator)Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board or any other applicable regulatorOTS.
(b) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OTS, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s 's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority, authority and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Parties’ Company's, the MHC's or the Association's knowledge, threatened by the Commission, the Federal Reserve Board OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received the received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇Elia▇ ▇▇▇▇, ▇▇ LLP, special ▇ecial counsel for the Primary PartiesCompany, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreementthe MHC, the Mid-Tier Holding Company and the Association, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.
(e) A blue sky memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: :
(i) they have carefully examined The Company has been duly incorporated and is validly existing as a corporation under the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light laws of the circumstances under which they were madeState of Delaware and has corporate power and authority to own, not misleading; (ii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package lease and the Prospectus, no event has occurred that should have been set forth in an amendment or supplement operate its properties and to the Prospectus that has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, business or prospects of the Primary Parties independently, or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfied; (iii) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (v) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vi) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other federal or state authority; and (vii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board or any other applicable regulator approving the Conversion.
(g) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with conduct its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth described in the Registration Statement and the Prospectus. All of the outstanding capital stock of the Company is duly authorized and validly issued, and since the respective dates upon payment therefor, will be fully paid and non-assessable.
(ii) The Association has been organized and is a validly existing federal savings association in capital stock form of organization, authorized to conduct its business and own its property as of which information is given described in the Registration Statement and Prospectus. All of the Prospectusoutstanding capital stock of the Association will be authorized and upon payment therefor, there shall not have will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The Mid-Tier Holding Company has been any Material Adverse Effect that organized as a, and is a validly existing, federal corporation, authorized to conduct its business and own its property as described in the Agent’s reasonable judgment sufficiently material Registration Statement and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(hiv) Prior The MHC has been organized and is a validly existing federal mutual holding company authorized to conduct its business and at the Closing Date: (i) own its property as described in the reasonable opinion Registration Statement and Prospectus.
(v) The Association is a member of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business FHLB-Atlanta. The deposit accounts of the Primary Parties considered as one enterpriseAssociation are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, from and as to such counsel's Actual Knowledge, threatened; the description of the latest date liquidation account as of which such condition is set forth in the Prospectus under the caption "The Conversion--Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Company no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, other than transactions referred to or contemplated thereinwill be duly and validly issued and fully paid and non-assessable; (ii) none the issuance of the Primary Parties shall have received from any Governmental Entity any direction (oral or written) Shares is not subject to make any material change in preemptive rights and the method terms and provisions of conducting their business with which it has not complied the Shares conform in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would be reasonably be expected to have a Material Adverse Effect; (iii) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed description thereof contained in the Prospectus. To such counsel's Actual Knowledge, shall be pending orupon the issuance of the Shares, good title to the knowledge Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The execution and delivery of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting this Agreement and the consummation of the transactions contemplated hereby have been validly authorized by all necessary action on the part of the Company, the Mid-Tier Holding Company, the MHC, and the Association; and this Agreement is a valid and binding obligation of the Company, the Mid-Tier Holding Company, the MHC and the Association, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions contained herein, including, without limitation, the provisions of Section 23A and 23B of the Federal Reserve Act, and except that no opinion need to be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(viii) The Conversion or Offering Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no statuteaction has been taken, rule and to such counsel's Actual Knowledge, none is pending or regulation shall have threatened, to revoke any such authorization or approval.
(ix) The Plan has been enactedadopted by the required vote of the directors of the Company, enteredthe Mid-Tier Holding Company, promulgated the MHC and the Association and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Mid-Tier Holding Company and the stockholders of the Association.
(x) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or enforced by other order of or notice to any Governmental Entity that prohibits federal or makes illegal Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the jurisdictions rules and regulations of the NASD and/or the Nasdaq National Market (as the Agent shall have reasonably requested and as agreed to by the Primary Partieswhich no opinion need be rendered).
(ixi) Concurrently with The Registration Statement is effective under the execution of this Agreement1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xii) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Agent shall receive a letter from BDO USAConversion Application, LLPincluding the Prospectus contained therein, dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USA, LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the financial statements and related notes of the Mid-Tier Holding Company as of December 31, 2014, June 30, 2014 and June 30, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, comply complied as to form in all material respects with the requirements of the Conversion Regulations, the HOLA and all applicable accounting requirements and related published rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and accounting information included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the SEC 1933 Act and the 1933 Act; Act Regulations, and (ii) stating that the Prospectus (Aother than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) during complied as to form in all material respects with the period from the date requirements of the recent developments financial information included 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the “Recent Developments” section Registration Statement and Prospectus, and the form of certificate used to evidence the Prospectus Shares is in proper form.
(xv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC, the Mid-Tier Holding Company or the Association is a specified date party or of which any of their property is the subject, which are not more than three business days prior to described in the date of Registration Statement and the Prospectus, except as has been described in including ordinary routine litigation incidental to the ProspectusCompany's, there was any increase in long-term debt of the MHC's, the Mid-Tier Holding Company's or the Association's business, other than normal deposit fluctuations for the Mid-Tier Holding Companyare, or decreases considered in the total assetsaggregate, total loans, the allowance for loan losses, total deposits or total equity of the Mid-Tier Holding Company and not material.
(Bxvi) during the period from the date of the recent developments financial information included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the ProspectusTo such counsel's Actual Knowledge, there were any decreasesare no material contracts, as compared with the corresponding period in the preceding fiscal yearindentures, in total interest incomemortgages, net interest incomeloan agreements, net interest income after provision for loan lossesnotes, income before income tax expense leases or net income of the Mid-Tier Holding Company; and (iii) stating that, in addition other instruments required to the audit be described or referred to in their opinion included the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Prospectus Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the performance Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the procedures referred information required to in clause be shown.
(iixvii) of this subsection (i)To such counsel's Actual Knowledge, they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the Mid-Tier Holding Company, the accounting system MHC and other data prepared by the Mid-Tier Holding CompanyAssociation have conducted the Conversion, directly from such accounting recordsin all material respects, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USA, LLP in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (i) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus.
(k) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board evidencing the valid existence of the MHC and the Mid-Tier Holding Company; (iv) a certificate from the New Jersey Banking Department evidencing the good standing of the Bank; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-New York evidencing the Bank’s membership therein; (vii) a certificate from the Maryland State Department of Assessments and Taxation evidencing the good standing of the Holding Company; and (viii) such other documents and certificates as the Agent may reasonably request.
(n) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts; (ii) a general moratorium on the operations of commercial banks, or a general moratorium on the withdrawal of deposits from commercial banks declared by federal or state authorities; (iii) the engagement by the United States in hostilities that have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shapplicable
Appears in 1 contract
Sources: Agency Agreement (Community Savings Bankshares Inc /De/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder, as to the Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Central Federal Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Primary Central Federal Parties shall have performed all of its obligations hereunder to be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Primary Central Federal Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Federal Reserve Board OCC and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board OCC, the FRB, or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the Federal Reserve Board OCC and the FRB, respectively and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Primary Central Federal Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Primary Central Federal Parties’ knowledge, threatened by the Commission, the Federal Reserve Board OCC, the FRB or any other federal regulatory authority. At the Closing Date, (i) the Registration Statement and all amendments thereto shall not contain an untrue statement of material fact or omit to state authoritya material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus and the Member’s Proxy Statement, and all amendments or supplements thereto, shall 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 under which they are made, not misleading; and (iii) none of the Permitted Free Writing Prospectuses, if any, shall 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 are made, not misleading.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, and upon which Agent’s counsel may rely upon for purposes of ▇delivering its legal opinion pursuant to Section 8(d), of L▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Primary Central Federal Parties, which shall also state that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely on such opinion in rendering its opinion pursuant to Section 8(d) of this Agreement, in form and substance satisfactory to the Agent and its counsel as attached hereto as Exhibit C.B.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Breyer & ▇▇▇▇▇▇▇▇ LLPAssociates PC (“Breyer & Associates”), special counsel for the Agent, in form and substance as reasonably acceptable to the Agent.attached hereto as Exhibit C.
(e) A Prior to the mailing of the Prospectus, a blue sky memorandum from ▇L▇▇▇▇ ▇▇▇▇▇▇ LLP LLC relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to the Holding Company with a copy thereof addressed to Agent or upon which ▇L▇▇▇▇ ▇▇▇▇▇▇ LLP LLC shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Primary Central Federal Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and any Permitted Free Writing Prospectus and, in their opinion, at the time the Prospectus and any Permitted Free Writing Prospectus became authorized for final use, the Prospectus and any Permitted Free Writing Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the respective dates as of which information is given in date the Registration Statement, the General Disclosure Package and the ProspectusProspectus became authorized for final use, no event has occurred that which should have been set forth in an amendment or supplement to the Prospectus that which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties, properties or business or prospects of the Primary Central Federal Parties; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Central Federal Parties independently, or of the Primary Central Federal Parties considered as one enterprise, whether or not arising in the ordinary course of business and the conditions set forth in this Section 8 have been satisfiedbusiness; (iiiiv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (ivv) the Primary Central Federal Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 8; (vvi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority; (vivii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Primary Parties, or threatened by the Federal Reserve Board FRB, OCC, or any other federal or state regulatory authority; and (viiviii) to the knowledge of the Primary Parties, no person has sought to obtain regulatory or judicial review of the final action of the Federal Reserve Board OCC or any other applicable regulator approving the Conversion.
(g) None of the Primary Central Federal Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations operations, business, affairs or business prospects of the Primary Central Federal Parties considered as one enterprise, from and that as of the latest date dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Primary Central Federal Parties shall have received from any Governmental Entity the OCC or the FRB, any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) or which materially and which adversely would be reasonably be expected to have affect the financial condition, results of operations or business of the Central Federal Parties taken as a Material Adverse Effectwhole; (iii) none of the Primary Central Federal Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Primary Central Federal Parties, threatened against the any of the Primary Central Federal Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Conversion or Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity that prohibits or makes illegal consummation of the Conversion or Offering; and (vi) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Primary Central Federal Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BDO USAM▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLPP.C., dated as of the date hereof and addressed to the Agent: (i) confirming that BDO USAM▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLP is P.▇.▇▇ a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Mid-Tier Holding Company Association as of December 31, 2014, June 30, 2014 and June 302015, 2013 and the six months ended December 31, 2014 and the years ended June 30, 2014 and 2013, and covered by their opinion included in the Prospectus, and providing negative assurance that any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and any other applicable regulator, including the 1933 ActAct and 1933 Act Regulations; (ii) stating that in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Association prepared by the Association, a reading of the minutes of the meetings of the Boards of Directors and committees, as applicable, of each of the Central Federal Parties and consultations with officers of the Central Federal Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the recent developments latest unaudited interim consolidated financial information statements included in the “Recent Developments” section of the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Mid-Tier Holding CompanyCentral Federal Parties, other than normal deposit fluctuations for the MidAssociation; non-Tier Holding Companyperforming assets, or decreases classified or special mention loans of the Association; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits deposits, loans receivable (net), or total equity retained earnings of the Mid-Tier Holding Company and (B) during the period from Association at the date of such letter as compared with amounts shown in the recent developments financial information latest balance sheet included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described ; or (D) there was any decrease in the Prospectus, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in net income or total interest income, income or net interest income, income or net interest income after provision for loan losses, non-interest income before income tax or increase in provision for loan losses or non-interest expense or net income of the Mid-Tier Holding CompanyAssociation, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Mid-Tier Holding CompanyCentral Federal Parties, which are subject to the internal controls of the Mid-Tier Holding CompanyCentral Federal Parties, the accounting system and other data prepared by the Mid-Tier Holding CompanyCentral Federal Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and any Permitted Free Writing Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, (i) confirming the statements made by BDO USAM▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLP P.C. in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (iii)(B) of subsection (i) to be a date specified in the letter required by this subsection (ij) which for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Mid-Tier Holding Company and from which the “Recent Developments” information included in the Prospectus was derived, a reading of the minutes of the meetings of the Boards of Directors and committees of each of the Primary Parties and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited interim financial statements and “Recent Developments” information included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commission, and GAAP applied on a basis substantially consistent with that of the audited financial statements included in the ProspectusDate.
(k) At the Closing Date, the Holding Company shall receive a letter from RP FinancialF▇▇▇▇▇▇ Financial Advisors, LC.Inc., dated the Closing Date (i) confirming that said firm is independent of the Primary Central Federal Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the BankAssociation, as most recently updated, remains in effect.
(l) To the extent a sale or other disposition or transfer of shares of common stock or other securities of the Holding Company is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit D hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit E hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of the Holding Company on or before the date hereof and shall be in full force and effect on the Closing Date.
(m) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the Federal Reserve Board OCC and the FRB and any other applicable regulator approving the Conversion Application and the Holding Company Application and authorizing the use of the ProspectusApplication; (ii) a copy of the order from the Commission that declared the Registration Statement effective; (iii) certificates from the Federal Reserve Board of appropriate government officials evidencing the valid existence and good standing of the MHC Holding Company and the Mid-Tier Holding CompanyAssociation; (iv) a certificate from the New Jersey Banking Missouri Department of Revenue evidencing the valid existence and good standing of the BankHolding Company; (v) a certificate from the FDIC evidencing the BankAssociation’s insurance of accounts; (vi) a certificate from the FHLB-New York FHLB evidencing the BankAssociation’s membership therein; (vii) a certificate from the Maryland State Department certified copy of Assessments and Taxation evidencing the good standing each of the Holding Company; ’s, the Association’s and the Subsidiaries’ Articles of Incorporation and Bylaws and (viii) such other documents and certificates as the Agent may reasonably request.
(nm) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or quotations halted generally on the Nasdaq Stock Market or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges by the NYSE or the Nasdaq Stock Market or in the over-the-counter market or by order of the Commission or any other governmental authority other than temporary trading haltsauthority; (ii) a general moratorium on the operations of commercial banks, federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from commercial banks federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities that which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline is so material and adverse, in the Agent’s reasonable judgment, to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(o) At or prior to the Closing Date, counsel to the Agent shnationa
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