Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued. (b) At Closing Time, the Agent shall have received: (1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P., counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. (ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement. (iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise. (iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time. (v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable. (vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise. (vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC. (viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank. (ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits. (x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim. (xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. (xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. (xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan. (xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto. (xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries. (xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization. (xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission. (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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations. (xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements. (xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material. (xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS OTS, the FDIC or the Department and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxx Xxxxxx, counsel for the Company, the MHC Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State United States of DelawareAmerica as a federally chartered mid-tier holding company.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank and the Subsidiaries MHC, considered as one enterprise. The Company is a registered savings and loan holding company under HOLA.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The Upon completion of the Reorganization, the issuance of the Securities will be in compliance with all of the conditions imposed upon the Company, the Bank and the MHC is validly existing and in good standing by the OTS, the FDIC or the Department under the laws terms of their written approval or notice of intention not to object, as applicable, of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCReorganization Applications.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as either a state-New Jersey chartered savings bank of mutual form or a New Jersey chartered savings and loan association of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the State of New Jersey as a New Jersey chartered savings bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs or prospects of the Bank.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion The MHC is a federal mutual holding company and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state of New Jersey, have United States and has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement and Prospectus to enter into and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification perform its obligations under this Agreement. The MHC is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a registered savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claimunder HOLA.
(xiixi) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS has approved OTS, the Holding Company Application FDIC and the Conversion Application (including Department have duly approved or not objected to, as the formation and merger of Interim A and Interim B)case may be, such approvals remain in full force and effect the Reorganization Applications and no action is pending orpending, or to the best of such counsel's knowledgeknowledge after due inquiry, threatened respecting the Holding Company Application or the Conversion Application Reorganization Applications or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application Reorganization Applications comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, the FDIC and the Department, include all documents required to be filed as exhibits thereto, and isare, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Bank and the BankMHC, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Bank and the BankMHC, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), ; (B) will not result in any violation of the provisions of the charter or bylaws of the Company, the Bank or the MHC; and (C) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the MHC considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries MHC pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries MHC 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMHC is subject.
(xvixiv) The Prospectus has been duly authorized by the OTS OTS, the FDIC and the Department for final use pursuant to the MHC Regulations, the FDIC Conversion Regulations and the New Jersey Banking Law and no action has been takenis pending, or is pending or, to the best of such counsel's knowledgeknowledge after due inquiry, is threatened, by the OTS OTS, the FDIC or the Department to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledgeknowledge after due inquiry, proceedings therefor initiated or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, the MHC Regulations, the FDIC Conversion Regulations and the Conversion RegulationsNew Jersey Banking Law.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or the authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of Closing Time, of Lxxx Xxxxxx XxxxxXxxxxxxx & Sxxxxx, L.L.P.P.C., counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica.
(ii) The Company MHC has full been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America.
(iii) The Bank has been duly organized and is validly existing as a savings and loan association chartered under the laws of the United States of America.
(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 AgreementAgreement and the transactions contemplated hereby.
(iiiv) The Company is duly qualified as a foreign corporation Bank has the authority to transact its business and is in good standing in the State States of New Jersey Ohio, Kentucky and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseFlorida.
(ivvi) Upon consummation The authorized capital stock of the Conversion Company consists of 700,000,000 shares of Common Stock and Reorganization100,000,000 shares of serial preferred stock, par value $.01 per share, and the authorized, issued and outstanding capital stock of the Company is 1,000 shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, or encumbrance; immediately upon consummation of the Offerings, and the issuance of the Foundation Shares to the Foundation and issuance of the MHC Shares to the MHC, the issued and outstanding shares of capital stock of the Company owned beneficially and of record by the MHC will be as owned free and clear of any security interest, mortgage, pledge, lien or encumbrance and all of the issued and outstanding shares of the Company will be within the range set forth in the Prospectus under "“Capitalization," and no .”
(vii) The authorized capital stock of the Bank consists of shares of Common Stock have been common stock, and the issued and remain outstanding prior to the Closing Time other than the shares issued to capital stock of the Bank is shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, or encumbrance. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and was exempt from registration under the Securities Act pursuant to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing TimeSection 3(a)(5) thereof.
(vviii) The Securities Securities, the Foundation Shares and the Exchange MHC Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, or issued by the Company pursuant to the Plan in the case of the MHC Shares, will be duly and validly issued and issued, fully paid and non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viix) The issuance of the Securities Securities, the Foundation Shares and the Exchange MHC Shares is are not subject to preemptive or other similar rights arising by operation of law or, to federal laws and regulations or the best of such counsel's knowledge, otherwiseCompany’s charter.
(viix) To such counsel’s actual knowledge, the Company, the MHC and the Bank have conducted the Offerings and the establishment and funding of the Foundation 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 , 200_ and , 200_ approving the MHC 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 Application and the effectiveness of the Prospectus), and have satisfied all conditions precedent to the issuance of the Securities, the Foundation Shares and the MHC Shares imposed upon them by the OTS under the terms of the OTS’s written approval of the MHC Application.
(xi) The MHC Bank is a member in good standing of the Federal Home Loan Bank of Cincinnati.
(xii) The deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xiii) Each Subsidiary has been duly incorporated and is validly existing and as a corporation in good standing under the laws of the United States jurisdiction of America as a mutual holding companyits incorporation, with and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus Prospectus, and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect; the activities of each Subsidiary as described in the Subsidiaries Registration Statement and Prospectus are permitted to subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank bank, in the case of the Bank, and a federally chartered mid-tier stock holding company, in the case of the Company, by the rules, regulations, resolutions regulations and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Company or the Bank, as the case may be, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claimencumbrance.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiiixiv) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, MHC Application; to the best of such counsel's ’s actual knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and 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 Offerings is pending or, or threatened and no person has sought to obtain review of the best final action of such counsel's knowledge, threatened respecting the New Jersey OTS in approving the MHC Application; the New Jersey MHC Application complies as to form in all material respects with New Jersey law and regulations and all other the applicable requirements of the New Jersey Department Form MHC-2 (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 MHC Application, (ii) in passing upon the compliance as to form of Bankingthe MHC 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.
(xv) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution of the Foundation Shares and cash to the Foundation and the issuance of the MHC Shares to the MHC (A) have been duly and validly 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 this (C) will not result in a breach or default, or result in the creation of any lien, charge or encumbrance under any agreement filed as an exhibit to the Registration Statement.
(xvi) The Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder thereunder may be limited under applicable law law, and subject to the qualification that (it being understood 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 counsel may avail itself of customary exceptions concerning enforceability is considered in a proceeding in equity or at law) and to the effect of bankruptcy, insolvency or similar certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies), (B) will not conflict with or constitute a breach of, or default under, including the remedies of specific performance 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorizationself-help.
(xvii) The Registration Statement is has been declared effective by the Commission under the Securities Act 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 Securities Act nor and no proceedings for such purpose have proceedings therefor been initiated or, to the best of such counsel's knowledge, or threatened by the Commission.
(xviii) The Prospectus has been declared effective by the OTS and such counsel has been advised by the OTS’ staff that no order suspending the effectiveness of the Prospectus has been issued by the OTS and no proceedings for such purpose have been initiated or threatened by the OTS.
(xix) 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 Securities and pursuant to the Exchange Shares and the consummation of the Conversion and ReorganizationPlan, except as may be required under the securities or “Blue Sky Sky” laws of various jurisdictions as to which no opinion need be rendered.
(xixxx) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable requirements of under the Securities Act, Act and the Securities 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 Conversion RegulationsRegistration 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 (xxiii).
(xxxxi) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirementsthe requirements of federal laws and regulations.
(xxixxii) There To such counsel’s actual knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that which are required, individually or in the aggregate, required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xxiii) The statements in the Prospectus under the captions “Risk Factors–Risks Related to the Stock Offering–Persons Who Purchase Stock in the Stock Offering Will Own a Minority of Our Shares of Common Stock and Will Not Be Able to Exercise Voting Control over Most Matters Put to a Vote of Stockholders,” “–Our Stock Value May be Negatively Affected by Federal Regulations Restricting Takeovers and Our Mutual Holding Company Structure,” “–The Corporate Governance Provisions in our Charter May Prevent or Impede the Holders of a Minority of Our Common Stock from Obtaining Representation on Our Board of Directors,” “–Office of Thrift Supervision Policy on Remutualization Could Prohibit the Acquisition of TFS Financial Corporation, Which May Lower Our Stock Price,” “Our Policy Regarding Dividends,” “Supervision and Regulation,” “Federal and State Taxation,” “The Stock Offering,” “Restrictions on the Acquisition of TFS Financial Corporation and Third Federal Savings and Loan Association of Cleveland,” and “Description of Capital Stock of TFS Financial Corporation,” 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.
(xxiv) 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.
(xxv) The Plan and funding of the Foundation have been duly authorized by all pending legal or governmental proceedings to which necessary corporate action by the Company, the MHCMHC and the Bank.
(xxvi) To such counsel’s actual knowledge, the Company, the MHC and the Bank or any are currently not in violation of their respective charters and bylaws.
(xxvii) The Company is not and, after giving effect to the offer and sale of the Subsidiaries is a party or to which any Securities and the application of their property is subject which are not the net proceeds as described in the Registration Statement, including ordinary routine litigation incidental Prospectus under the caption “How We Intend to Use the business, are, considered Proceeds from the Stock Offering,” will not be required to be registered as an “investment company” as such term is defined in the aggregateInvestment Company Act of 1940, not materialas amended.
(xxiixxviii) The information 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 the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus describing Prospectus; the liquidation account Foundation will not be a savings and loan holding company within the meaning of the Home Owners’ Loan Act as a result of the issuance of the Foundation Shares to it; no approvals are required to establish the Foundation and to contribute the Foundation Shares thereto other than those set forth in the written notice of approval of the MHC Application, copies of which were provided to the Agent prior to the Closing Time; and the issuance of the Foundation Shares to the Foundation has been registered under the captions "Securities Act pursuant to the Registration Statement.
(2) The Conversion and Reorganization - Liquidation Rights" and "- Effects written opinion, dated as of Conversion and Reorganization - Effect on LiquidationClosing Time, of Mxxxxxx Xxxxxx & Aguggia LLP, counsel for the Agent, with respect to the matters set forth in Section 5(b)(1)(i), (ii), (iii), (vi), (vii), (viii), (xv(A)),
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of the Securities and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Xxxxx Lovells US LLP, counsel for the laws of Agents, addressing such matters the State of DelawareAgents may reasonably request.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxx Lovells US LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation to transact business and is in good standing in At the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessClosing Time, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS or any other regulatory authority, other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at At the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; , any Material Adverse Effect.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is requiredchief financial or chief accounting officer of the Company, except where of the failure to so qualify would not have a material adverse effect upon Mid-Tier Company, of the financial condition, results of operations or business affairs MHC and of the Bank.
, dated as of Closing Time, to the effect that (ixi) The Bank there has been no Material Adverse Effect since the date hereof or since the respective dates as of which information is a member of given in the Federal Home Loan Bank of New York Registration Statement and the deposit accounts of Prospectus, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank are insured by from the FDIC up to the applicable limits.
(x) Upon consummation latest date as of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business condition of the Company, the Mid-Tier Company, the MHC or the Bank has been set forth in the Registration Statement and the Subsidiaries considered as one enterprise; Prospectus other than transactions referred to or contemplated therein and transactions in the activities ordinary course of business consistent with past practice, (iii) none of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by Company, the rulesMid-Tier Company, regulations, resolutions and practices of the MHC or the Bank shall have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which would have a Material Adverse Effect, (iv) the representations and by New Jersey law warranties in Section 1 hereof are true and correct with the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full same force and effect as though expressly made at and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all as of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated herebyClosing Time, (Av) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Mid-Tier Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency performed or similar laws and the availability of equitable remedies)satisfied at or prior to Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission or any other governmental body, (vii) no order suspending any material aspect of the Conversion or the contribution to the Foundation or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application and (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(f) At the Closing Time, the Agents shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement, fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(g) As of the date hereof, the Agents shall have received from McGladrey & Xxxxxx, LLP a letter dated such date, in form and substance satisfactory to the Agents, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act nor have proceedings therefor been initiated orand the Securities Act Regulations and the OTS Regulations, to the best of such counsel's knowledge, threatened by the Commission.
(xviii) No further approval, authorization, consent or other order of any public board or body is required in connection they are registered with the execution PCAOB and delivery of this Agreement, the issuance they are not in violation of the Securities and the Exchange Shares and the consummation auditor independence requirements of the Conversion Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and Reorganization, 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 supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and McGladrey & Xxxxxx, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act RegulationsRegulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the MHC, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions included in the Registration Statement or (B) during the period from September 30, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the Conversion Regulationsrelevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxh) The Common Stock conforms At the Closing Time, the Agents shall have received from McGladrey & Xxxxxx, LLP a letter, dated as of Closing Time, to the description thereof contained effect that they reaffirm the statements made in the Prospectusletter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At the Closing Time, the Securities shall have been approved for quotation on the Nasdaq Global Market upon notice of issuance.
(j) At the Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(k) At the Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the form purpose of certificate used enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the Common Stock is accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in due connection with the issuance and proper sale of the Securities as herein contemplated shall be satisfactory in form and complies with all applicable statutory requirementssubstance to the Agents and counsel for the Agents.
(xxil) There At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are no legal so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental proceedings pending authority, and a banking moratorium shall not have been declared by either Federal, Virginia or threatened against New York authorities.
(m) The Securities shall have been qualified or affecting registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agents shall have reasonably requested and as agreed to by the Company, the MHC, the Bank or Mid-Tier Company and the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not materialBank.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxSilver, L.L.P.Xxxxxxxx & Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the laws of Agents, as to such matters as the State of DelawareAgents shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Xxxxxxxx & Taff, L.L.P. and Xxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation At Closing Time referred to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessSection 2 hereof, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgents shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering, the contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agents shall have received from Deloitte & Touche LLP a letter dated such date, in form and statistical data substance satisfactory to the Agents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and Deloitte & Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agents and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agents shall have received from Deloitte & Touche LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(k) At Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agents and counsel for the Agents.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the Company, the MHC Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareGxxxxxx & Kxxx, S.C., counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Gxxxxxx & Kxxx, S.C. shall each additionally 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, pro forma 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, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Gxxxxxx & Kxxx, S.C. may rely as to matters of fact on certificates of officers and directors of the Company has full corporate power and the Bank and certificates of public officials. Gxxxxxx & Kxxx, S.C. may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Closing Time referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the Bank or the MHC by the FRB, the WDFI or the FDIC or any other regulatory authority other than those which the FRB, the WDFI or the FDIC or any such other regulatory authority permit to ownbe completed after the Reorganization.
(d) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing the Prospectus, any Material Adverse Effect, whether or not arising in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct ordinary course of business, except where and the failure to so qualify would not Agent shall have received a material adverse effect upon certificate of the financial condition, results of operations or business Chief Executive Officer of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities MHC and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business Chief Financial Officer of the Company, the Bank and the Subsidiaries considered MHC, dated as one enterprise; of Closing Time, to the activities effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or the MHC from the latest date as of which the financial condition of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by Company or the Bank, free and clear of any security interestas set forth in the Registration Statement, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application Prospectus and the Conversion Application (including General Disclosure Package other than transactions referred to or contemplated therein and transactions in the formation and merger ordinary course of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects business consistent with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated herebypast practice, (Aiii) have been duly and validly authorized by all necessary action on the part of each none of the Company, the Bank or the MHC and shall have received from the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the CompanyFRB, the MHC and WDFI or the Bank, enforceable in accordance with its terms, except as rights FDIC any order or direction (oral or written) to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 make any material change in the creation method of conducting its business with which it has not complied (which order or imposition of any liendirection, charge if any, shall have been disclosed in writing to the Agent) or encumbrance upon any property or assets of which materially and adversely would affect the Companybusiness, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs prospects of the Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and the Subsidiaries considered as one enterprise MHC have complied with all agreements and (C) will not result in any violation of the provisions of the certificate satisfied all conditions on their part to be performed or articles of incorporation, charter satisfied at or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant prior to the Conversion Regulations and no action has been takenClosing Time, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best knowledge of such counsel's knowledgethe Company, the Bank or the MHC, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application, the WDFI’s approval of the WDFI Applications and the FDIC’s approval of the FDIC Applications 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 WDFI or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the Company, consent the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) 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; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxx Xxxxx 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 Bank’s ability to record, process, summarize, and report financial data, and have identified for the 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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this Agreement, the issuance of the Securities Company’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixf) At As of the time date hereof, the Agent shall have received from Bxxxx Xxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxx Xxxxx set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under "Selected Financial and Other Data" or under "Recent Developments" in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregatelong-term or short-term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the ___________, 2018 unaudited statements of financial condition presented under the "Recent Developments" caption in the Registration Statement, or (D) during the period from ___________, 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Bank, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At the Closing Time, the Agent shall have received from Bxxxx Xxxxx a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letters furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to the captions "The Conversion Closing Time.
(h) At the Closing Time, the Securities shall have been approved for listing on the OTC Pink Marketplace.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and Reorganization - Liquidation Rights" opinions as they may require for the purpose of enabling them to pass upon the issuance and "- Effects sale of Conversion the Securities as herein contemplated and Reorganization - Effect related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE MKT, the New York Stock Exchange, the Nasdaq Stock Market or the OTC Pink Marketplace shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or Wisconsin authorities.
Appears in 1 contract
Samples: Agency Agreement (TEB Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxLuse Gorman Pomerenk & Schick, L.L.P.P.C., counsel for the CompanyXxxxxxx, the MHC and the Bankxxx Xxxx xnd xxx XXC, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State United States of DelawareAmerica as a federally chartered mid-tier holding company.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank Bank, the Subsidiary and the Subsidiaries MHC, considered as one enterprise. The Company is a registered savings and loan holding company under HOLA.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The Upon completion of the Reorganization, the issuance of the Securities will be in compliance with all conditions imposed upon the Company, the MHC is validly existing and in good standing the Bank and by the OTS under the laws terms of the United States their written approval or notice of America intention not to object, as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCapplicable.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State United States of New Jersey America as a state-federally chartered savings and loan association of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings and loan association of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs or prospects of the Bank...
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation The Subsidiary of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have and the Subsidiary has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the MHC, the Bank and the Subsidiaries Subsidiary, considered as one enterprise; the activities of the Subsidiaries Subsidiary are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xi) The MHC is a federal mutual holding company and has been duly incorporated and is validly existing as a as a corporation in good standing under the laws of the United States and has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus to enter into and perform its obligations under this Agreement. The MHC is a registered savings and loan holding company under HOLA.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiii) The OTS has duly approved the Holding Company Application and the Conversion MHC Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledgeknowledge after due inquiry, threatened respecting the Holding Company Application or the Conversion MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion MHC Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and isare, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Bank and the BankMHC, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Bank and the BankMHC, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), ; (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the MHC, the Bank or the Subsidiary; and (C) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the MHC, the Bank and the Subsidiary considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary 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 Bank or any of the Subsidiaries Subsidiary is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariessubject.
(xvixv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion MHC Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledgeknowledge after due inquiry, is threatened, by the OTS to revoke such authorization.
(xviixvi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledgeknowledge after due inquiry, proceedings therefor initiated or threatened by the Commission.
(xviiixvii) 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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxviii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion MHC Regulations.
(xxxix) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixx) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that Subsidiary which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixxi) The information in the Prospectus describing the liquidation account under the captions "Our Policy Regarding Dividends," " Business of Flatbush Federal Savings and Loan Association of Brooklyn - Legal Proceedings," " Federal and State Taxation," " Supervision and Regulation," "The Conversion Reorganization and the Stock Offering," "Effects of the Reorganization - and Offering on Depositors and Borrowers of Flatbush Federal," " Liquidation Rights," " Tax Effects of the Reorganization," "Restrictions on Acquisitions of Flatbush Federal Bancorp, Inc. and Flatbush Federal" and "- Effects Description of Conversion Capital Stock of Flatbush Federal Bancorp, Inc.," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx XxxxxXxxxxxxx & Xxxxxx, L.L.P.P.C., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of Closing Time, of Silver, Xxxxxxxx & Taff, L.L.P., counsel for the Agent, providing that:as attached hereto as Exhibit C.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Silver, Xxxxxxxx & Taff, L.L.P. shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The At Closing Time referred to in Section 2 hereof, the Company has full corporate power and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to ownbe completed after the Conversion.
(d) At Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and/or Chief Executive Officer of the Company, and of the Bank and the chief financial or chief accounting officer of the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and to enter into and perform its obligations under this Agreement.
transactions in the ordinary course of business consistent with past practice (iii) The neither the Company is duly qualified as a foreign corporation nor the Bank shall have received from the OTS any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and in each other jurisdiction in which such qualification is required whether by reason of adversely would affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the CompanyCompany or the Bank, the Bank and the Subsidiaries considered as one enterprise.
, (iv) Upon consummation the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Conversion and ReorganizationClosing Time, the authorized, issued and outstanding capital stock (v) each of the Company will and the Bank have complied with all agreements and satisfied all conditions on their part to be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding performed or satisfied at or prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and/or President of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus 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.
(f) As of the date hereof, appraisal the Agent shall have received from McGladrey & Xxxxxx, L.L.P. a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and McGladrey & Xxxxxx, L.L.P. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Bank included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregatelong term or short term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or net worth of the Bank, in each case as compared with the amounts shown in the December 31, 2009 statements of financial conditions included in the Registration Statement or, (D) during the period from March 31, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Bank, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from McGladrey & Xxxxxx, L.L.P. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland, New York or Texas authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the “Blue Sky Survey”) from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus describing to the liquidation account under Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on LiquidationAgent may rely.
Appears in 1 contract
Samples: Agency Agreement (SP Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, hereunder and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Superintendent or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Muldon, Xxxxxx Xxxxx& Xxxxxxxx, L.L.P., special counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualify qualified would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and Reorganizationthe issuance of Foundation Shares to the Foundation immediately upon completion thereof, subject to compliance with all conditions imposed upon the formation and contribution thereof by the Superintendent, the FDIC or the OTS under the terms of any written notice or order of approval of the Conversion Application or the Holding Company Application, in an amount as described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-non- assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ the date hereof and prior to the Closing Time duly organized, and is validly existing in good standing under the laws of the State of New York as a New York State-chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the State of New Jersey York as a state-New York State chartered savings and loan association bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement and the Prospectus and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries as described in the Prospectus are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey York State chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rulesSuperintendent, regulations, resolutions and practices of as the New Jersey Department of Bankingcase may be; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiix) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval of the Conversion Application or the Holding Company Application copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiiixii) The OTS has duly approved the Holding Company Application (including a specific determination that the Bank is a "qualified thrift lender" within the meaning of 12 U.S.C. (S) 1467a(m)) and the Superintendent and the FDIC have duly approved the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application (including therewith, the establishment of the Foundation and the contribution of shares of Common Stock thereto) or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and the Conversion Application complies as to form in all material respects with the applicable requirements of the Superintendent and the FDIC except as compliance therewith is specifically waived in writing by the Superintendent or the FDIC, as the case may be, and, to the best of such counsel's knowledge, include all documents required to be filed as exhibits theretothereto and are complete in all material respects, excluding the Prospectus and is, any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to the best of such counsel's knowledge, truthful, accurate and completewhich no opinion need be given; the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to the best of such counsel's knowledge, will not conflict with or constitute a breach of, or default under, and no default exists 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprise a whole, and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter organization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or the Subsidiariesany Subsidiary.
(xvixiv) The Prospectus has been duly authorized by the OTS Superintendent and the FDIC for final use pursuant to the Conversion Regulations Regulations, and no action has been taken, taken or is pending pending, or, to the best of such counsel's knowledge, is threatened, by the OTS Superintendent or the FDIC to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and 1933 Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 1933 Act nor have or proceedings therefor been therefore initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Foundation Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (except for the appraisal, financial statements and schedules and other than the financial statements, appraisal and or statistical data included therein, as to which counsel need make no opinion need be renderedstatement) complied as to form in all material respects with the requirements of the Securities Act, 1933 Act and the Securities 1933 Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHCBank, the Bank Subsidiaries or the Subsidiaries that Foundation which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing under "Risk Factors - Establishment of the liquidation account under Charitable Foundation - Tax Consequences," "- Possible Payment of Financing Corporation Bonds," "- Certain Anti-Takeover Provisions," and "- Possible Adverse Income Tax Consequences of the captions Distribution of Subscription Rights," "Dividend Policy," "Business of the Bank - Legal Proceedings," "Federal and State Taxation," "Regulation," "The Conversion and Reorganization - Establishment of Charitable Foundation," "- Effects of Conversion," "- Liquidation Rights" and "- Effects Tax Aspects," "Restrictions on Acquisition of Conversion the Company and Reorganization - Effect on Liquidationthe Bank," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Bank," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxMuldoon Murphy & Aguggia, L.L.P.XXX, counsel for the Companyxxxxxxx xxx xxx Xxxpanx, the xxx MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareMissouri; the MHC has been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States; the Bank has been duly organized and is validly existing as a federal savings bank in stock form chartered under the laws of the United States.
(ii) The Company Each of the Company, the MHC and the Bank has full the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this AgreementAgreement and the transactions contemplated hereby.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business Each of the Company, the Bank MHC and the Subsidiaries considered as one enterpriseBank has the authority to transact its business in the State of Missouri.
(iv) Upon The authorized capital stock of the Company consists of 20,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01 per share, of which no shares are issued and outstanding; upon consummation of the Conversion and ReorganizationConversion, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale; the Exchange Shares have been duly and validly authorized for issuance and saleissuance; the Securities, when issued and delivered by the Company 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 non-assessablenonassessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratioissued, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law oror regulation or the articles of incorporation, to charter or bylaws of the best of such counsel's knowledgeCompany, otherwisethe MHC or the Bank.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the Des Moines.
(viii) The deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of Interim B No. 2 will have been duly authorized, authorized and validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B No. 2 with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiix) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank Bank, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixi) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A No. 1 and Interim BNo. 2); to such counsel's actual knowledge, such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, pendingor threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application Application, including the Plan, comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include and to such counsel's actual knowledge includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, is truthful, accurate and completecomplete (other than the financial statements, notes to financial statements and tabular, statistical and appraisal data included therein, as to which no opinion need be rendered); and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xivxii) The New Jersey Department At the time of Banking has approved their use, both the New Jersey Application, Members' Proxy Statement and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies Stockholders' Proxy Statement complied as to form in all material respects with New Jersey law and regulations and all other applicable the requirements of the New Jersey Department of Banking, OTS Regulations and includes all documents required to be filed as exhibits theretothe Exchange Act Regulations.
(xvxiii) 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. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, (B) will not violate the articles of incorporation, charter or bylaws of the Company, the MHC or the Bank, and this (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.
(xiv) The Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder thereunder may be limited under applicable law law, and subject to the qualification that (it being understood 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 counsel may avail itself of customary exceptions concerning enforceability is considered in a proceeding in equity or at law) and to the effect of bankruptcy, insolvency or similar certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies), (B) will not conflict with or constitute a breach of, or default under, including the remedies of specific performance 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariesself-help.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is has been declared effective by the Commission under the Securities Act 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 Securities Act nor and no proceedings for such purpose have proceedings therefor been initiated or, to the best of such counsel's knowledge, or threatened by the Commission.
(xviiixvi) The Prospectus has been declared effective and the Members' Proxy Statement and the Stockholders' Proxy Statement have 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 Members' Proxy Statement and the Stockholders' Proxy Statement has been issued by the OTS and no proceedings for such purpose have been initiated or threatened by the OTS.
(xvii) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxviii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion OTS Regulations.
(xxxix) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixx) There To such counsel's actual knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, MHC or the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixxi) The information in the Prospectus describing under "Risk Factors--Stockholders of Liberty Savings Bank who receive Liberty Bancorp common stock in exchange for their stock in the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rightsconversion will receive lesser rights as stockholders than they currently have," and "- Effects --Office of Thrift Supervision regulations and anti-takeover provisions in our articles of incorporation restrict the accumulation of our common stock, which may adversely affect our stock price," "Our Dividend Policy," "Federal and State Taxation," "Regulation and Supervision," "The Conversion--Description of the Conversion," "--Effect of the Conversion on Stockholders of Liberty Savings Bank," "--Share Exchange Ratio," "--Effects of Conversion on Depositors, Borrowers and Reorganization - Effect Members," "--Material Income Tax Consequences," and "--Liquidation Rights," "Comparison of Stockholders' Rights," "Restrictions on LiquidationAcquisition of Liberty Bancorp and BankLiberty," "Description of Liberty Bancorp Xxxxxxx Xxxxx," xxx "Xxxxx xxx Xxx Xxxxxxxx" xx xhe extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxLuse Gorman Pomerenx & Xxxxxx, L.L.P.X.X., counsel for xxxxxxx xxx thx Xxxxany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agent as attached hereto as Exhibit B.
(i2) The Company favorable opinion, dated as of Closing Time, of Bingham McCutchen, xxxxxxx for the Agxxx, xx xttached hereto as Exhibit C.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Luse Gorman Pomerenk & Xxxxxx, X.X. xxx Bingham McCuxxxxx LLP shall exxx xxxixxxxxxxx state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgent shall have received a certificate of the President and/or Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and/or President of the MHC, the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the MHC, appraisal the Mid-Tier Company and statistical data the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, the Agent shall have received from Shatswell, MacLeod & Companx, X.X. a xxxxxx dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sarbanes-Oxley Act; (ii) it xx xxxxx xxinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Shatswell, MacLeod & Company, X.X. xet xxxxx xn detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under "Selected Consolidated Financial and Other Data" in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the MHC, in each case as compared with the amounts shown in the December 31, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 MHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Shatswell, MacLeod & Company, X.X. x lexxxx, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland, New York or Massachusetts authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the "Blue Sky Survey") from Luse Gorman Pomerenk & Schxxx, X.X. xxxxxxxg to xxx Offering, including Agent's participation therein, shall have been furnished prior to the mailing of the Prospectus describing to the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on LiquidationCompany with a copy thereof addressed to Agent or upon which Luse Gorman Pomerenk & Schick, X.X. xxxxx xxxxx xhe Xxxxx may rely.
Appears in 1 contract
Samples: Agency Agreement (Peoples Federal Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit C.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareXxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations under this Agreement.
which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or (iiiif applicable) The Company is duly qualified that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a foreign corporation material fact or omitted or omits to transact business and is state a material fact necessary in good standing order to make the statements therein, in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason light of the ownership or leasing circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP may rely as to matters of property or the conduct fact on certificates of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP may also rely on the Subsidiaries considered as one enterpriseopinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP.
(ivc) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to At the Closing Time referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the shares issued FRB or the Pennsylvania Banking Department permits to be completed after the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at Conversion.
(d) At the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; , any Material Adverse Effect whether or not arising in the ordinary course of business, and the Bank is duly qualified as Agent shall have received a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs certificate of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Subsidiaries considered as one enterprise; the activities Chief Financial Officer of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by Company, the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, and this Agreement constitutes dated as of Closing Time, to the legaleffect that (i) there has been no such material adverse change, valid and binding agreement (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of each which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHCMHC nor the Bank shall have received from the FRB, the Bank Pennsylvania Banking Department or the FDIC any of the Subsidiaries is a party order or by which direction (oral or written) to make any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant satisfied at or prior to the Conversion Regulations and no action has been takenClosing Time, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the FRB’s approval of the Conversion Application, the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application and no person has sought to obtain regulatory or judicial review of the action of the Pennsylvania Department in approving the Pennsylvania Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Mid-Tier Company, the Company, the MHC and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company, the MHC and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from KPMG LLP a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial condition included in the Registration Statement or, (D) during the period from June 30, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit D hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit E hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from KPMG LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(i) At the Closing Time, all notices required to be filed to permit the Securities and Reorganization - Effect the Exchange Shares to be quoted on Liquidationthe Nasdaq Global Select Market upon notice of issuance shall have been timely filed.
(j) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on the Nasdaq, the New York Stock Exchange or the NYSE MKT shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Department of Banking, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxElias, Matz, Xxxxxxx & Xxxxxxx, L.L.P., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State Commonwealth of DelawarePennsylvania.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof and upon the completion of the Merger and issuance of the Merger Shares, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and and, except for shares issued upon incorporation of the Company, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The Merger Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Merger Agreement against payment of the consideration calculated as set forth in the Merger Agreement, will be duly and validly issued and fully paid and non-assessable.
(vii) The issuance of the Securities Securities, the Foundation Shares and the Exchange Merger Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(viiviii) The MHC is validly existing Upon completion of the Conversion and the Merger, the issuance of the Securities, the Foundation Shares and the Merger Shares will be in good standing compliance with all conditions imposed upon the Company and the Bank by the Department of Banking, the FDIC or the FRB under the laws terms of their written approval or notice of intention not to object, as applicable, of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCReorganization Application.
(viiiix) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State Commonwealth of New Jersey Pennsylvania as a state-state chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and loan association in good standing under the laws of the Commonwealth of Pennsylvania as a state chartered savings bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs or prospects of the Bank.
(ixx) The Bank is a member in good standing of the Federal Home Loan Bank of New York Pittsburgh and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, and the Subsidiaries have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus Registration Statement and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan bank holding company and of a New Jersey Pennsylvania-chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking, the FDIC and the FRB; all of the issued and outstanding capital stock of the Subsidiaries has have been duly authorized and validly issued, is are fully paid and nonassessable non-assessable and is are owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xii) 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 holding company within the meaning of the BHCA and the applicable rules and regulations of the FRB promulgated thereunder 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the Reorganization Applications, copies of which were provided to the Agent prior to the Closing Time; and the Foundation Shares to be contributed to the Foundation are registered pursuant to the Registration Statement.
(xiii) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessablenon- assessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixiv) The OTS has Department of Banking, the FDIC, the FRB and the OCC have duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect Reorganization Applications and no action is pending orpending, or to the best of such counsel's knowledgeknowledge after due inquiry, threatened respecting the Holding Company Application or the Conversion Application Reorganization Applications or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application Reorganization Applications comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTSDepartment of Banking, include the FDIC, the OCC and the FRB, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares and the issuance of the Merger Shares in accordance with the Merger Agreement, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or bylaws of the Company, the Bank or the Subsidiaries; and, (BC) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiaries, considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariessubject.
(xvi) The Prospectus has been duly authorized by the OTS Department of Banking and the FDIC for final use pursuant to the Conversion Regulations and the FDIC Conversion Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledgeknowledge after due inquiry, is threatened, by the OTS Department of Banking or the FDIC to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledgeknowledge after due inquiry, proceedings therefor initiated or threatened by the Commission.
(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 Securities Securities, the Merger Shares and the Exchange Foundation Shares and the consummation of the Conversion and Reorganizationthe Merger, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Samples: Agency Agreement (KNBT Bancorp Inc)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or to the knowledge of the Company threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing Agent as a corporation in good standing under the laws of the State of Delawareattached hereto as Exhibit A hereto.
(ii2) The Company favorable opinion, dated as of Closing Time, of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Agent, as attached hereto as Exhibit B hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P. shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in believe that the Registration Statement (except for financial statements and schedules, notes to financial statements, stock valuation information 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, notes to enter into financial statements, stock valuation information and perform its obligations under this Agreement.
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 Closing Time, or (iiiif applicable) The Company is duly qualified that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a foreign corporation material fact or omitted or omits to transact business and is state a material fact necessary in good standing order to make the statements therein, in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason light of the ownership or leasing circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. may rely as to matters of property or the conduct fact on certificates of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. may also rely on the Subsidiaries considered as one enterpriseopinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP.
(ivc) Upon consummation of At Closing Time referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion and Reorganizationin accordance with the Plan, the authorizedapplicable OTS Regulations and all other applicable laws, issued regulations, decisions and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," orders, including all terms, conditions, requirements and no shares of Common Stock have been issued and remain outstanding prior provisions precedent to the Closing Time Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS or any other regulatory authority other than those which the shares issued OTS permits to be completed after the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing TimeConversion.
(vd) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the SecuritiesAt Closing Time, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Mid-Tier Company, the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or any not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the Subsidiaries pursuant President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to any contractthe effect that (i) there has been no such material adverse change, indenture(ii) there shall have been no material transaction entered into by the Company, mortgagethe Mid-Tier Company, loan agreement, note, lease the MHC or other instrument to the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC, the Bank or any and the Subsidiaries, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Subsidiaries is a party or by which any of them may be boundClosing Time, or to which any of the property or assets (v) each of the Company, the MHC, the Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Mid-Tier Company, the Bank MHC and the Subsidiaries considered as one enterprise Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (Cvi) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community or Syndicated Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the chief financial or chief accounting officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from Clark, Schaefer, Xxxxxxx & Co. a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that they are the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review in accordance with Statement on Auditing Standards (SAS) No. 100, “Interim Financial Information” (AU Section 722) agreed upon by the Agent and Clark, Schaefer, Xxxxxxx & Co. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement, or (D) during the period from March 31, 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) At Closing Time, the Agent shall have received from Clark, Schaefer, Xxxxxxx & Co. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and Exchange Shares shall have been approved for quotation on the Nasdaq Global Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Indiana or New York authorities.
(l) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects of Conversion shall be in full force and Reorganization - Effect effect on Liquidationthe Closing Date.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank Primary Parties and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank Primary Parties herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of the officers and directors of the MHC, Company, the MHC Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank Primary Parties of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) The Company and the MHC have received written notice from the FRB of its approval of (i) the Holding Company Application and (ii) the FRB Application and such approval remains in full force and effect. No order has been issued by the FRB suspending or revoking such approval and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the FRB.
(c) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the Company, the MHC and the BankPrimary Parties, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareGxxxxxx Xxxxxxx, LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Gxxxxxx Procter LLP shall each additionally state that nothing has full corporate power come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial, pro forma, appraisal 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, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Gxxxxxx Procter LLP may rely as to matters of fact on certificates of officers and directors of the Primary Parties and certificates of public officials. Gxxxxxx Procter LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(d) At the Closing Time referred to in Section 2 hereof, the Primary Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the FRB Regulations, Massachusetts Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier, the MHC or the Bank by the FRB, the Division or any other regulatory authority other than those which the FRB, the Division or any such other regulatory authority permit to ownbe completed after the Conversion.
(e) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Mid-Tier, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there has been no material transaction entered into by the MHC, the Mid-Tier, the Company or the Bank from the latest date as of which the financial condition of the MHC, the Company, the Mid-Tier or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to enter into or contemplated therein and perform its obligations under this Agreement.
transactions in the ordinary course of business substantially consistent with past practice, (iii) The Company is duly qualified as a foreign corporation none of the Primary Parties shall have received from the FRB, the Division or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or that would materially and in each other jurisdiction in which such qualification is required whether by reason of adversely affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets prospects of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank Mid-Tier and the Subsidiaries Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions Closing Time, (v) each of the certificate Primary Parties shall have complied with all agreements and satisfied all conditions in all material respects on their part to be performed or articles of incorporation, charter satisfied at or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant prior to the Conversion Regulations and no action has been takenClosing Time, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best Knowledge of such counsel's knowledgethe Company, the MHC, the Mid-Tier or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application and the FRB Application or the transactions contemplated thereby or the Division’s approval of the Massachusetts 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 MHC, the Mid-Tier or the Bank, threatened by the FRB or the Division and no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations and Massachusetts Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application and the FRB Application or the Division approving the Massachusetts Application, and (viii) no order suspending the Subscription and Community Offering, or the Syndicated Community Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the Division.
(xviiif) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the MHC, consent the Mid-Tier, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus, the Information Statement, the and the General Disclosure Package fairly present the financial condition and results of operations of the Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC, the Mid-Tier and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Exxxxxx Xxxxx, LLC and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures that are reasonably likely to adversely affect the Mid-Tier’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier’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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this AgreementCompany’s, the issuance of MHC’s, the Securities Mid-Tier’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixg) At As of the time date hereof, the Agent shall have received from Exxxxxx Xxxxx, LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Mid-Tier, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Exxxxxx Xxxxx, LLC set forth in detail in such letter, nothing has come to their attention that causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the Primary Parties or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the MHC, in each case as compared with the amounts shown in the December 31, 2022 audited consolidated statements of financial condition presented in the Registration Statement or, (C) during the period from December 31, 2022 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in consolidated total interest and dividend income, net interest income, net interest income after provision for loan losses, income before provision for income taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiih) The information At the Closing Time, the Agent shall have received from Exxxxxx Xxxxx, LLC a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than three (3) business days prior to the captions "The Conversion Closing Time.
(i) At the Closing Time, the Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Closing Time, the Company and "- Effects the Bank shall have received a letter from the Appraiser, dated as of Conversion the Closing Time, confirming its appraisal.
(k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and Reorganization - Effect opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Samples: Agency Agreement (NB Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers officers, directors and directors trustees of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no . No order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Superintendent or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxHogax & Hartxxx X.X.P., L.L.P., special counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York, and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualify qualified would not have a material adverse effect upon the financial condition, results of operations operation or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion Conversion, and Reorganizationissuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and issued, fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC Foundation has been duly incorporated and is validly existing and as a non-stock corporation in good standing under the laws of the United States State of America as a mutual holding company, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement Prospectus; the Foundation is not a bank holding company under the New York Banking law or the BHC Act or a savings and Prospectus and is duly qualified loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs result of the MHCissuance 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, Conversion Application or the Holding Company Application copies of which were provided to the Agent prior to the Closing Time.
(viii) The Bank has been at all times since _________________ the date of this Agency Agreement and prior to the Closing Time duly organized, and is validly existing in good standing under the laws of the State of New York as a New York State chartered savings bank of mutual form, and at Closing Time, has become duly organized, validly existing and in good standing under the laws of the State of New Jersey York as a stateNew York-chartered savings and loan association of bank in stock form, in both instances, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business except where the failure to so qualify would not have a material adverse effect upon the financial condition, condition or results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits, and the Bank is a member of the Federal Home Loan Bank of New York.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement, the Prospectus and are the Holding Company Application and is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operation or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprise; a whole, the activities of the Subsidiaries as described in the Prospectus and the Holding Company Application are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey York State chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law Federal Reserve and the rulesSuperintendent, regulations, resolutions and practices of as the New Jersey Department of Bankingcase may be; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiixi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS Superintendent and Federal Reserve has approved the Holding Company Application, the Superintendent has approved the Conversion Application and the FDIC has issued a letter of intent not to object to the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application (including therewith the establishment of the Foundation and the contribution of shares of Common stock thereto) or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTSSuperintendent and the Federal Reserve, and the Conversion Application complies as to form in all material respects with the applicable requirements of the Superintendent and the FDIC and include all documents required to be filed as exhibits thereto, excluding the Prospectus and is, to any related marketing materials filed as a part of the best of such counsel's knowledge, truthful, accurate and completeHolding Company Application or the Conversion Application; the Company is duly authorized to become a savings and loan bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws insolvency, and the availability of equitable remedies), (B) will not result in any violation of the provisions of the certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or by-laws of the Company, the Bank or any of its Subsidiaries; and, (C) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject subject, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariesa whole.
(xvixiv) The Prospectus has been duly authorized by the OTS Superintendent and the FDIC for final use pursuant to the Conversion Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS Superintendent or the FDIC to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, have proceedings therefor been initiated or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statementsstatements the notes thereto, related schedules and other financial, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHCBank any of the Subsidiaries, the Bank or the Subsidiaries that Foundation which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all .
(xx) All pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixxi) The information in the Prospectus describing under "Risk Factors - Contribution to the liquidation account under Charitable Foundation - Potential Anti-Takeover Effect," and "Risk Factors - Contribution to the captions Charitable Foundation - Impact on Earnings and Tax Considerations;" and "Risk Factors Anti-Takeover Provisions Restricting the Acquisition of Troy Xxxancial Corporation", "Risk Factors - Possible Adverse Income Tax Consequences of the Distribution of Subscription Rights," "Dividend Policy," "Regulatory Capital Compliance", "Business of The Troy Xxxings Bank - Legal Proceedings," "Taxation," "Regulation and Supervision," "The Conversion and Reorganization Conversion-Establishment of The Community Foundation," "- Effects of Conversion," "- Liquidation Rights" and "- Effects Tax Aspects," "Restrictions on Acquisition of Conversion The Troy Xxxancial Corporation," "Description of Capital Stock of The Troy Xxxancial Corporation" and Reorganization - Effect on Liquidation"Description of Capital Stock of The Troy Xxxings Bank" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of the Securities and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLuse, L.L.P.Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, a Professional Corporation, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the AgentAgents, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey Iowa and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Conversion and ReorganizationConversion, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under the section captioned "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The MHC is validly existing and is in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been been, at all times since _________________ the date hereof and prior to the Closing Time Time, duly organized, and is validly existing and in good standing under the laws of the State United States of New Jersey America as a state-federally chartered savings and loan association bank of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, required except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York Des Moines and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation Each of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement and Prospectus and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise; the activities of each of the Subsidiaries are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the BankBank or the MHC, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xiixi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and to the knowledge of such counsel, include all documents required to be filed as exhibits thereto, and is, are to the best of such counsel's knowledge, truthful, accurate and completecomplete as to form in all material respects, excluding the Prospectus filed as part of the Holding Company Application or the Conversion Application, and any related marketing materials as to which no opinion need be given; and the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), ; (B) will not result in any violation of the provisions of the certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or by-laws of the Company, the MHC, the Bank or any of the Subsidiaries; and, (C) to such counsel's knowledge will not conflict with 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Subsidiaries, considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariessubject.
(xvixiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the appraisal, financial statements, appraisal and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or to such counsel's knowledge, threatened against or affecting the Company, the MHC, the Bank or any of the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject subject, which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing the liquidation account under the captions sections captioned "Risk Factors - Anti-Takeover Provisions in our Governing Instruments and Voting Control of Management May Discourage Takeover Attempts," "Dividend Policy," "Business of First Federal - Legal Proceedings", "Taxation," "Regulation," "The Conversion - Effects of Conversion on Depositors, Borrowers and Reorganization - Liquidation Members," "-Liquidation Rights" and "- Effects Tax Aspects," "Restrictions on Acquisitions of Conversion First Federal Bankshares and Reorganization - Effect on LiquidationFirst Federal," "Description of Capital Stock of First Federal Bankshares" and "Description of Capital Stock of First Federal," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is complete and accurate in all material respects and to the extent it constitutes summaries of written legal opinions rendered by a person or entity other than such counsel has been reviewed by such counsel and is a complete and accurate summary of such opinions in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1i) The favorable opinionwritten opinion contained in Exhibit 1 hereof, dated as of Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, special counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company favorable opinion contained in Exhibit 2 hereof, dated as of Closing Time, of Nxxxxx, MxXxxxxxx & Fish LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Nxxxxx, MxXxxxxxx & Fish, LLP shall each additionally state that nothing has full corporate power 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 Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted 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, Lxxx Xxxxxx, PC, and Nxxxxx, MxXxxxxxx & Fish, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Nxxxxx, MxXxxxxxx & Fish, LLP may also rely on the opinion of Lxxx Xxxxxx, PC with respect to matters set forth in paragraphs (vi), (vii), (xvii), (xviii) and (xx) therein.
(c) At Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Offerings in accordance with the Plan, the applicable Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offerings imposed upon the Company, the MHC or the Bank by the Division, the FRB or any other regulatory authority, other than those which the Division, the FRB or such other regulatory authority permits to ownbe completed after the Offerings.
(d) At Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and Prospectus the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to enter the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank is set forth in the Registration Statement and perform its obligations under this Agreement.
the Prospectus, other than transactions specifically disclosed therein and transactions in the ordinary course of business consistent with past practice (iii) The Company is duly qualified as a foreign corporation neither the Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and in each other jurisdiction in which such qualification is required whether by reason of adversely would affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and MHC or the Subsidiaries Bank, considered as one enterprise.
, (iv) Upon consummation the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
, (v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, Bank has complied with all agreements and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency performed or similar laws and the availability of equitable remedies)satisfied at or prior to Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best of such counsel's their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the CommissionDivision and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Massachusetts Regulations.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer and President of the Company, consent of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other order financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Company and any public board or body is required in connection with subsidiary, as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) At the time of the execution and delivery of this Agreement, the issuance Agent shall have received from Wxxxxxxxxx & Hxxxxx, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Exchange Shares Securities Act Regulations and the consummation Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the Conversion auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and Reorganization, 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 supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wxxxxxxxxx & Hxxxxx, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregatelong-term or short-term debt of the Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from January 1, 2015 to a specified date not more than five (5) days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Wxxxxxxxxx & Hxxxxx, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the captions "The Conversion Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or Massachusetts authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxSilver, L.L.P.Xxxxxxxx & Xxxx, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP , counsel for the Agents, as attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Xxxxxxxx & Xxxx, L.L.P. and Xxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgents shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agents shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agents shall have received from Xxxxx Howath LLP a letter dated such date, in form and statistical data substance satisfactory to the Agents, to the effect that: (i) for the three-year period ended December 31, 2009, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended December 31, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations;
(g) As of the date hereof, the Agents shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Agents, to the effect that: (i) for the three-month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) based upon limited procedures as agreed upon by the Agents and Ernst & Young LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from March 31, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiih) The information At Closing Time, the Agents shall have received from Xxxxx Xxxxxxx LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the captions "The Conversion Agents shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(j) At Closing Time, the Securities and Reorganization - Liquidation Rights" Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(k) At Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(l) At Closing Time, counsel for the Agents shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agents and counsel for the Agents.
(m) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or the authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of Closing Time, of Xxxxxx XxxxxMalizia Spidi & Fisch, L.L.P.P.C., counsel cxxxxxx for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica.
(ii) The Company MHC has full been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America.
(iii) The Bank has been duly organized and is validly existing as a savings bank chartered under the laws of the United States of America.
(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 AgreementAgreement and the transactions contemplated hereby.
(iiiv) The Company Each of the Company, the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing under the laws of the United States of America, in the State of New Jersey and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect.
(ivvi) Upon consummation The authorized capital stock of the Conversion Company consists of 25,000,000 shares of Common Stock and Reorganization5,000,000 shares of serial preferred stock, par value $.10 per share, and the authorized, issued and outstanding capital stock of the Company is __________ shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Offerings, the issued and outstanding shares of capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no ."
(vii) The authorized capital stock of the Bank consists of 25,000,000 shares of Common Stock have common stock, par value $0.10 per share, and 5,000,000 shares of preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Bank is 10,000 shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Timestate securities laws.
(vviii) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and issued, fully paid and non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viix) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law orlaw, to the best of or such counsel's knowledgeknowledge after due inquiry, otherwise, except for subscription rights granted pursuant to the Plan.
(viix) The Each of the Company and the MHC is validly existing registered as a savings and in good standing loan holding company under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCHome Owners' Loan Act.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixxi) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the York.
(xii) The deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xxiii) Upon consummation The issuance of the Conversion and Reorganization, Securities is in compliance with all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock conditions imposed upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank MHC and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank Bank by the rulesOTS under the terms of their written approval or notice of intention not to object, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claimas applicable.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiiixiv) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), Plan; such approvals remain approval remains in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, knowledge threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stockPlan; the Holding Company Application and the Conversion Application comply Plan complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) will not result in any violation of the provisions of the certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC or the Bank, and (C) 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 upon any property or assets of the Company, the MHC, MHC or the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, MHC or the Bank or any of the Subsidiaries 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, MHC or the Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMaterial Adverse Effect.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Samples: Agency Agreement (Gateway Community Financial Corp)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the CommissionSEC, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxx Xxxxxxxx & Wood, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a federal stock corporation in good standing under the laws of the State United States, and the MHC has been duly incorporated and is validly existing as a federal mutual holding company under the laws of Delawarethe United States.
(ii) The Each of the Company and the MHC has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Each of the Company and the MHC is duly qualified as a foreign corporation to transact business and is in good standing in the State States of New Jersey Georgia and Alabama and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Subsidiaries Bank's subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The MHC is Bank has been at all times since 1954 and prior to the Closing Time duly organized and validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of mutual holding companyform, with full corporate power and, at Closing Time, has become duly organized and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State United States of New Jersey America as a state-federally chartered savings and loan association bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member of the Federal Home Loan Bank of New York Atlanta and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation Each direct and indirect subsidiary of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the MHC, the Bank and the Subsidiaries considered Bank's subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries each such subsidiary are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xiix) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixi) The OTS has duly approved the Holding Company Application and the Conversion MHC Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion MHC Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge and information, truthful, accurate and complete; the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan; and the MHC is duly authorized to become a federal mutual holding company and is duly authorized to own a majority of the issued and outstanding capital stock of the Company.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the MHC, the Bank or any of the Bank's subsidiaries; and, (BC) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Bank's subsidiaries considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries Bank's subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries Bank's subsidiaries 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 Bank or any of the Subsidiaries Bank's subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariessubject.
(xvixiii) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion OTS Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixiv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the CommissionSEC.
(xviiixv) 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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvi) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion OTS Regulations.
(xxxvii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixviii) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that Bank's subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Bank's subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixix) The information in the Prospectus describing the liquidation account under the captions "Our Policy Regarding Dividends," "Business of CharterBank - Legal Proceedings," "Regulation of CharterBank and Charter Financial - Taxation," "The Conversion Reorganization and Reorganization the Offering - Effects of Reorganization," "- Liquidation Rights," and "- Effects Tax Aspects," "Restrictions on Acquisitions of Conversion Charter Financial and Reorganization - Effect on LiquidationCharterBank" and "Description of Capital Stock of Charter Financial," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx Xxxxx, L.L.P.& Xxxxxxxx, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessrequired, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiary, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratioissued, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgeknowledge and information, otherwise.
(vii) The MHC has been duly organized and is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ the date hereof and prior to the Closing Time duly organized, and is validly existing and in good standing existing, under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the BankCompany, the MHC, the Bank and the Subsidiary, taken as a whole.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, authorized and validly issued and fully paid and nonassessableunassessable, and to such counsel's knowledge all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state of New Jersey, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiary, taken as one enterprisea whole; the activities of the Subsidiaries Subsidiary as described in the Prospectus are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, to such counsel's knowledge, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and, to such counsel's knowledge, include all documents required to be filed as exhibits thereto, excluding the Prospectus and is, any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to the best of such counsel's knowledge, truthful, accurate and completewhich no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and and, to such counsel's knowledge, includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to such counsel's knowledge, 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary 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 Bank or any of the Subsidiaries Subsidiary is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered Subsidiary, taken as one enterprise a whole, and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesSubsidiary.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 1933 Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and Securities, the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities 1933 Act Regulations, and the Conversion 1933 Act Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries Subsidiary that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - "Effect on LiquidationLiquidation Rights" and the information under "Risk Factors - Financial Institution Regulation and Possible Legislation," "- Certain Anti-Takeover Provisions Which May Discourage Takeover Attempts," " - Possible Adverse Income Tax Consequences of the Distribution of Subscription Rights," "Dividend Policy," "Federal and State Taxation," "Regulation," "The Conversion and Reorganization," "Restrictions on Acquisition of the Company and the Bank," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Bank" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, is correct in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, Company the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, . no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Breyer & Aguggia, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey South Carolina, and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualify qualified would not have a material adverse effect upon the financial condition, results of operations operation or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and ReorganizationConversion, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, Plan will be duly and validly issued and fully paid and non-assessable; the Exchange Sharesissued, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, . otherwise.
(vii) The MHC is validly existing and is in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ the date hereof and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey United States as a statefederally-chartered savings and loan association bank of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business except where the failure to so qualify would not have a material adverse effect upon the financial condition, condition or results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement and the Prospectus and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operation or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprise; a whole, the activities of the Subsidiaries as described in the Prospectus are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey federally-chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiixi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance. claim or legal or equitable claimequity.
(xiiixii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and the Conversion Application complies as to form in all material respects with the applicable requirements of the OTS and include all documents required to be filed as exhibits thereto, excluding the Prospectus and is, any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to the best of such counsel's knowledge, truthful, accurate and completewhich no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, hereby (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws insolvency, and the availability of equitable remedies), (B) will not result in any violation of the provisions of the certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or by-laws of the Company, the MHC, the Bank or any of its Subsidiaries; and, (C) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject subject, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or and the Subsidiaries, taken as a whole.
(xvixiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, have proceedings therefor been initiated or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statementsstatements the notes thereto, related schedules and other financial, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or any of the Subsidiaries that Subsidiaries, which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all .
(xx) All pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixxi) The information in the Prospectus describing under "-Certain Anti- Takeover Provisions," and "- Possible Adverse Income Tax Consequences of the liquidation account under Distribution of Subscription Rights," "Dividend Policy," "Business of the captions Bank - Legal Proceedings," "The Conversion Federal and Reorganization State Taxation," "Regulation," "- Liquidation Effects of Conversion," "-Liquidation Rights" and "- Effects -Tax Aspects," "Restrictions on Acquisition of Conversion the Company and Reorganization - Effect on Liquidationthe Bank," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Bank" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxSilver, L.L.P.Xxxxxxxx & Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the laws of Agents, as to such matters as the State of DelawareAgents shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Xxxxxxxx & Taff, L.L.P. and Xxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation At Closing Time referred to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessSection 2 hereof, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgents shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Offering, the contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agents shall have received from Deloitte & Touche LLP a letter dated such date, in form and statistical data substance satisfactory to the Agents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and Deloitte & Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and 28 supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from March 31, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agents and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agents shall have received from Deloitte & Touche LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(k) At Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agents and counsel for the Agents.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, hereunder and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Superintendent or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx Xxxxx& Xxxxxxxx, L.L.P., special counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualify qualified would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and Reorganizationthe issuance of Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC Bank has been at all times since the date hereof and prior to the Closing Time organized, and is validly existing and in good standing under the laws of the United States State of America New York as a New York State-chartered savings bank of mutual holding companyform, with full corporate power and authority to ownand, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is requiredat Closing Time, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time become duly organized, and is validly existing and in good standing under the laws of the State of New Jersey York as a state-New York State chartered savings and loan association bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Registration Statement and the Prospectus and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries as described in the Prospectus are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey York State chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rulesSuperintendent, regulations, resolutions and practices of as the New Jersey Department of Bankingcase may be; all of the issued and outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiix) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, Conversion Application or the Holding Company Application copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank Bank, when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS has approved the Holding Company Application and the Superintendent has approved the Conversion Application (including and the formation and merger FDIC has issued a letter of Interim A and Interim B), such approvals remain in full force and effect intent not to object to the Conversion and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application (including therewith, the establishment of the Foundation and the contribution of shares of Common Stock thereto) or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and the Conversion Application complies as to form in all material respects with the applicable requirements of the Superintendent and the FDIC, except as compliance therewith is specifically waived in writing by the Superintendent or the FDIC, as the case may be, and include all documents required to be filed as exhibits theretothereto and are complete as to form in all material respects, excluding the Prospectus and is, any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to the best of such counsel's knowledge, truthful, accurate and completewhich no opinion need be given; the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) will not conflict with or constitute a breach of, or default under, and no default exists 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprise a whole, and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter organization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or the Subsidiariesany Subsidiary.
(xvixiv) The Prospectus has been duly authorized by the OTS Superintendent and the FDIC for final use pursuant to the Conversion Regulations Regulations, and no action has been taken, taken or is pending pending, or, to the best of such counsel's knowledge, is threatened, by the OTS Superintendent or the FDIC to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 1933 Act nor have or proceedings therefor been therefore initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Foundation Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than except for financial statements and notes thereto, the financial statements, appraisal and schedules and other financial or statistical data included thereinin the Registration Statement, as to which counsel need make no opinion need be renderedstatement) complied as to form in all material respects with the requirements of the Securities Act, 1933 Act and the Securities 1933 Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHCBank, the Bank Subsidiaries or the Subsidiaries that Foundation which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing under "Risk Factors--Effects of the liquidation account under Establishment of the captions Foundation--Tax Consequences," "The Conversion and Reorganization - Liquidation Rights--Certain Anti- Takeover Provisions," and "- Effects --Possible Adverse Income Tax Consequences of Conversion the Distribution of Subscription Rights," "Dividend Policy," "Business of the Bank-- Legal Proceedings," "Federal and Reorganization - Effect State Taxation," "Regulation and Supervision," "The Conversion-- Establishment of Charitable Foundation," "--Effects of Conversion," "--Liquidation Rights," "--Tax Aspects" and "--Certain Restrictions on LiquidationPurchase or Transfer of Shares After Conversion," "Restrictions on Acquisition of the Company and the Bank," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Bank," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Federal Reserve Board Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Federal Reserve Board, or any other regulatory authority other than those which the Federal Reserve Board permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgent shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHCMHC nor the Bank shall have received from the Federal Reserve Board, the Bank OCC or the FDIC any of the Subsidiaries is a party order or by which direction (oral or written) to make any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Federal Reserve Board’s approval of the Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the Federal Reserve Board Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from S.R. Xxxxxxxxx, X.X. a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Federal Reserve Board Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and S.R. Xxxxxxxxx, X.X. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to Federal Reserve Board Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid- Tier Company, in each case as compared with the amounts shown in the March 31, 2012 consolidated balance sheets included in the Registration Statement or, (D) during the period from March 31, 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) At Closing Time, the Agent shall have received from S.R. Xxxxxxxxx, X.X. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and Exchange Shares shall have been approved for quotation on the OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Pennsylvania or New York authorities.
(l) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and "- Effects of Conversion shall be in full force and Reorganization - Effect on Liquidationeffect at the Closing Time.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Ober, Kaler, Xxxxxx Xxxxx& Xxxxxxx, L.L.P.a Professional Corporation, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica; the MHC has been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America; the Bank has been duly organized and is validly existing as a federal savings bank chartered under the laws of the United States of America.
(ii) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the Company, the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing under the laws of the United States of America, in the State of New Jersey Maryland and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank MHC and the Subsidiaries Bank, considered as one enterprise.
(iv) Upon The authorized capital stock of the Company consists of 9,000,000 shares of Common Stock, par value $.01 per share, and 1,000,000 shares of serial preferred stock, no par value per share, of which no shares are issued and outstanding; upon consummation of the Conversion and Reorganization, Offerings the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "“Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time”.
(v) The Securities authorized capital stock of the Bank consists of 9,000,000 shares of common stock, par value $.01 per share, and 1,000,000 shares of serial preferred stock, no par value per share of which no shares are issued and outstanding; upon consummation of the Offerings, and the Exchange Shares issued and outstanding capital stock of the Bank will be shares of common stock, all of which will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. When issued in accordance with the Plan, all of the issued and outstanding capital stock of the Bank will be duly authorized, validly issued, fully paid and nonassessable and will be issued in compliance with all federal and state securities laws.
(vi) The Securities have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vivii) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of the law or, to the best of such counsel's knowledge’s knowledge after due inquiry, otherwise, except for subscription rights granted pursuant to the Plan.
(viiviii) The issuance of the Securities is in compliance with all conditions imposed upon the Company, the MHC and the Bank by the OTS under the terms of their written approval or notice of intention not to object, as applicable.
(ix) Each of the Company and the MHC is registered as a savings and loan holding company under the Home Owners Loan Act.
(x) The Bank is a member in good standing of the Federal Home Loan Bank of Atlanta and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xi) Each Subsidiary has been duly incorporated or organized and is validly existing and as a corporation or limited liability company in good standing under the laws of the United States jurisdiction of America as a mutual holding companyits incorporation or organization, with and each of the Subsidiaries has full corporate or limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus Prospectus, and is duly qualified as a foreign corporation or limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise; the activities of the Subsidiaries each Subsidiary are permitted to subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank bank, in the case of the Bank, and a federally chartered stock holding company, in the case of the Company, by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the MHC or the Bank, as the case may be, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganizationencumbrance, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Samples: Agency Agreement (SFSB, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers officers, trustees and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Department or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxx Xxxxxxxx & Wood, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey Delaware and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Subsidiaries its subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion Reorganization, and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof, in compliance with all conditions imposed upon the contribution thereof by the FDIC under the terms of the intent not to object in an amount described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is are not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since [_________________ ] and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey York as a state-New York chartered savings bank in mutual form, and, at Closing Time, has become duly organized, validly existing and loan association in good standing under the laws of the State of New York as a New York chartered savings bank in stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have The MHC has been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank organized and is not subject validly existing as a new York state chartered mutual holding company, duly authorized to any security interest, mortgage, pledge, lien, encumbrance or claimconduct its business and own its properties as described in the Registration Statement and Prospectus.
(xix) The Subsidiaries have Each direct and indirect subsidiary of the Bank has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the MHC, the Bank and the Subsidiaries considered its subsidiaries taken as one enterprisea whole; and the activities of the Subsidiaries each such subsidiary are permitted to subsidiaries of a savings and loan bank holding company and of a New Jersey York chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingDepartment; all of the issued and outstanding capital stock of the Subsidiaries each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xi) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Reorganization, the MHC Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Time.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiii) The OTS FRB has approved the Holding Company Application and Application, the Conversion Application (including Department has approved the formation and merger of Interim A and Interim B)MHC Application, such approvals remain in full force and effect the FDIC has issued its non-objection to the Plan and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion MHC Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTSFRB, include FDIC and Department, respectively, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the MHC, the Bank or any of its subsidiaries; and, (BC) 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 upon any property or assets of the Companyencumbrance, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Subsidiaries its subsidiaries considered as one enterprise and (C) will not result in enterprise, or pursuant to any violation contract, indenture, loan agreement, note, lease or other instrument to which the Company, the MHC the Bank or its subsidiaries is a party or by which any of them may be bound, or to which any of the provisions of the certificate property or articles of incorporation, charter or bylaws of assets fo the Company, the MHC, the Bank or the Subsidiariesits subsidiaries is subject.
(xvixv) The Prospectus has been duly authorized by the OTS Department for final use pursuant to the Conversion MHC Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS Department to revoke such authorization.
(xviixvi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission.
(xviiixvii) 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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxviii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion MHC Regulations.
(xxxix) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixx) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that its subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries its subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixxi) The information in the Prospectus describing under "Risk Factors- The establishment of the liquidation account under the captions Rome Savings Foundation will reduce our earnings," "Rome, MHC's voting control over Rome Bancorp may prevent transactions you would like," "Business of Rome Savings Bank - Legal Proceedings," "Taxation - Federal," "State," "Regulation of Rome Savings Bank and Rome Bancorp," "Our Policy Regarding Dividends," "The Conversion Reorganization and Reorganization the Offering - Liquidation Rightswhy we are Establishing The Rome Savings Foundation," "-Tax Considerations," "-Regulatory Conditions Imposed on the Foundation," "Restrictions on Acquisition of Rome Bancorp" and "- Effects Description of Conversion Capital Stock of Rome Bancorp" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Samples: Agency Agreement (Rome Bancorp Inc)
Conditions of Agent’s Obligations. The Company, the MHC, the Mid- Tier HC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC MHC, the Mid-Tier HC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC MHC, the Mid-Tier HC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC MHC, the Mid-Tier HC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxxxx Spidi & Xxxxx, L.L.P.PC, counsel for the Company, the MHC MHC, the Mid-Tier HC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareFlorida; the MHC has been duly incorporated and is validly existing as a federal mutual holding company in good standing under the laws of the United States; the Mid-Tier HC has been duly incorporated and is validly existing as a federally-chartered holding company in good standing under the laws of the United States.
(ii) The Company Each of the Company, the MHC and the Mid-Tier HC has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company Each of the Company, the MHC and the Mid-Tier HC is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey Florida and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the Bank MHC, the Mid-Tier HC and the Subsidiaries Bank, considered as one enterprise.
(iv) Upon consummation of the Conversion and ReorganizationConversion, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale; the Exchange Shares have been duly and validly authorized for issuance and saleissuance; the Securities, when issued and delivered by the Company 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 non-assessablenonassessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratioissued, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is Bank has been at all times since the date hereof and prior to the Closing Time, duly organized and validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-federally chartered savings and loan association of bank in stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the ProspectusProspectus and to enter into and perform its obligations under this Agreement; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the MHC, the Mid-Tier HC and the Bank, considered as one enterprise.
(ixviii) The Bank is a member in good standing of the Federal Home Loan Bank of New York Atlanta and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of Interim B No. 3 will have been duly authorized, authorized and validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B No. 3 with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiix) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank Bank, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixi) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A Xx. 0, Xxxxxxx Xx. 0 and Interim BNo. 3), ; such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xivxii) The New Jersey Department At the time of Banking has approved their use, both the New Jersey Application, Members' Proxy Statement and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies Stockholders' Proxy Statement complied as to form in all material respects with New Jersey law and regulations and all other applicable the requirements of the New Jersey Department of BankingOTS Regulations and the Exchange Act Regulations, and includes all documents did not contain an untrue statement of a material fact or omit to state a material fact required to be filed as exhibits theretostated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC MHC, the Mid-Tier HC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC MHC, the Mid-Tier HC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or bylaws of the Company, the MHC, the Mid-Tier HC or the Bank; and, (BC) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Mid-Tier HC and the Bank, considered as one enterprise, upon any property or assets of the Company, the MHC, the Mid-Tier HC or the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier HC or the Bank or any of the Subsidiaries 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 Bank Mid-Tier HC or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMHC is subject.
(xvixiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion OTS Regulations and no action has been takentaken or is pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have or, proceedings therefor been initiated or, to the best of such counsel's knowledge, or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion OTS Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or or, to the best of such counsel's knowledge, threatened against or affecting the Company, the MHC, the Bank Mid-Tier HC or the Subsidiaries that Bank which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Mid-Tier HC or the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing under "Risk Factors -Our corporate documents and regulations of the liquidation account under the captions Office of Thrift Supervision may make it difficult for anyone to acquire us" and -"Banking reform legislation may increase competition," "Dividend Policy," "Taxation," "Regulation," "The Conversion and Reorganization - Liquidation RightsEffects of the Conversion and Reorganization," and "- Effects Federal and State Tax Consequences of the Conversion and Reorganization - Effect Reorganization," "Restrictions on LiquidationAcquisition of FloridaFirst Bancorp, Inc.," "Description of Capital Stock," and "Legal and Tax Opinions" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or the authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, the FRB or the Division, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1i) The favorable opinionwritten opinion contained in Exhibit B hereof, dated as of Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance reasonably satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power favorable opinion contained in Exhibit C hereof, dated as of Closing Time, of Nxxxxx, MxXxxxxxx & Fish LLP, counsel for the Agent, in form and authority substance reasonably satisfactory to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this AgreementAgent.
(iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Nxxxxx, MxXxxxxxx & Fish, LLP shall each additionally 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, pro forma, appraisal 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 Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted 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. The Company is duly qualified as a foreign corporation opinions may be limited to transact business and is in good standing in matters governed by the laws of the United States, the State of New Jersey Maryland and in each other jurisdiction in which such qualification is required whether by reason the Commonwealth of the ownership or leasing Massachusetts. In giving their opinions, Lxxx Xxxxxx, PC, and Nxxxxx, MxXxxxxxx & Fish, LLP may rely as to matters of property or the conduct fact on certificates of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business officers and directors of the Company, the Mid-Tier Company, the MHC, the Bank and the Subsidiaries considered Subsidiaries, as one enterpriseapplicable, and certificates of public officials, and Nxxxxx, MxXxxxxxx & Fish, LLP may also rely on the opinion of Lxxx Xxxxxx, PC with respect to matters set forth in paragraphs (iv), (x), (xiv), (xv) and (xvii) therein.
(ivc) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to At the Closing Time referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Massachusetts Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Division, the FRB or any other regulatory authority, other than those which the shares issued Division, the FRB or such other regulatory authority permits to be completed after the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at Conversion.
(d) At the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; , any Material Adverse Effect whether or not arising in the ordinary course of business consistent with past practice, and the Bank is duly qualified as Agent shall have received a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs certificate of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York President and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Subsidiaries considered as one enterprise; the activities Chief Financial or Chief Accounting Officer of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by Company, the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, and this Agreement constitutes dated as of Closing Time, to the legaleffect that (i) there has been no such Material Adverse Effect, valid and binding agreement (ii) there has been no material transaction entered into by the Company, the Mid-Tier Company, the MHC, or the Bank from the latest date as of each which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank is set forth in the Registration Statement and the BankProspectus, enforceable other than transactions referred to or contemplated therein and transactions in accordance the ordinary course of business substantially consistent with its termspast practice, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning disclosed in the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies)Prospectus, (Biii) will not conflict with or constitute a breach ofneither the Company, 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 upon any property or assets of the Mid-Tier Company, the MHC, nor the Bank or any of has received from the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the CompanyDivision, the MHC, FRB or the Bank FDIC any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best of such counsel's their knowledge, threatened by the Commission, and (vii) no order suspending the FRB’s approval of the Holding Company Application or the Division’s approval of the Massachusetts Conversion 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 the Division and, to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations or the Massachusetts Regulations, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the Division in approving the Massachusetts Conversion Application.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixe) At the time Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement became effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from Wxxxxxxxxx PC a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Mid-Tier Company and the Bank within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC; (ii) it is their opinion that the consolidated financial statements included therein, as to which no in the Registration Statement and covered by their opinion need be rendered) complied therein comply as to form in all material respects with the applicable accounting requirements of the Securities ActAct and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wxxxxxxxxx PC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations, and or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated borrowings of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial condition included in the Registration Statement or, (D) during the period from March 31, 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mid-Tier Company, identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Wxxxxxxxxx PC a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidationletter furnished pursuant to
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or to the knowledge of the Company threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission, the OTS or the OFI and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxElias, Matz, Xxxxxxx & Xxxxxxx, L.L.P., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing Agent as a corporation in good standing under the laws of the State of Delawareattached hereto as Exhibit A hereto.
(ii2) The Company favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP , counsel for the Agent, as attached hereto as Exhibit B hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P. and Xxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation At Closing Time referred to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessSection 2 hereof, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, the OFI or any other regulatory authority other than those which the OTS or OFI permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgent shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS or OFI and no person has sought to obtain regulatory or judicial review of the action of the OTS or OFI in approving the Plan in accordance with the OTS Regulations or OFI Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS or OFI in approving the Conversion Application, the Holding Company Application or the OFI Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from Heard, XxXxxxx & Xxxxxx, LLP a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that they are the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations and OFI Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the two-year period ended December 31, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review in accordance with Statement on Auditing Standards (SAS) No. 100, “Interim Financial Information” agreed upon by the Agent and Heard, XxXxxxx & Xxxxxx, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, the OTS Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OFI Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from September 30, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) At Closing Time, the Agent shall have received from Heard, XxXxxxx & Xxxxxx, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and Exchange Shares shall have been approved for quotation on the Over-the-Counter Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Louisiana or New York authorities.
(l) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects of Conversion shall be in full force and Reorganization - Effect effect on Liquidationthe Closing Date.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, Department, the FDIC, the FRB or any state authority, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or any state authority, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxElias, Matz, Xxxxxxx & Xxxxxxx, L.L.P., counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Upon completion of the Reorganization, the Company has been will be duly incorporated organized and validly existing as a stock holding company chartered under the laws of the Commonwealth of Pennsylvania; upon completion of the Reorganization, the MHC will be duly organized and validly existing as a mutual holding company chartered under the laws of the Commonwealth of Pennsylvania; the Bank is duly organized and is validly existing as a corporation savings bank in good standing mutual form chartered under the laws of the State Commonwealth of DelawarePennsylvania and at the Closing Time will be duly organized and validly existing in stock form.
(ii) The Each of the Company has and the MHC, upon completion of the Reorganization, will have, and the Bank has, full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the Company, the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing in under the State laws of New Jersey the Commonwealth of Pennsylvania and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect.
(iv) Upon The authorized capital stock of the Company consists of 40,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, par value $.01 per share, of which no shares are issued and outstanding; upon consummation of the Conversion Reorganization and Reorganization, the Offerings the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares or will be canceled at the Closing Timeissued prior thereto.
(v) The authorized capital stock of the Bank consists of _________shares of common stock, par value $[.01] per share, and _____ shares of serial preferred stock, par value $[.01] per share, of which no shares are issued and outstanding; upon consummation of the Offerings, the issued and outstanding capital stock of the Bank will be _____ shares of common stock, all of which will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. When issued in accordance with the Plan, all of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued, fully paid and nonassessable and issued in compliance with all federal and state securities laws.
(vi) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vivii) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of the law or, to the best of such counsel's knowledgeknowledge after due inquiry, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where for subscription rights granted pursuant to the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCPlan.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws issuance of the State of New Jersey as a state-chartered savings and loan association of stock formSecurities is in compliance with all conditions imposed upon the Company, with full 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; MHC and the Bank is duly qualified by the Department, the FDIC and the FRB under the terms of their written approval or notice of intention not to object, as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bankapplicable.
(ix) Upon completion of the Reorganization, each of the Company and the MHC will be registered as a bank holding company under the BHCA.
(x) The Bank is a member in good standing of the Federal Home Loan Bank of New York Pittsburgh and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xxi) Upon consummation of The Applications, including the Conversion and ReorganizationPlan, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued approved by the Department and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with FDIC; the FRB has approved the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Holding Company Application and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank purchase by the rules, regulations, resolutions and practices Company of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries Bank; the FDIC has been duly authorized approved the Interagency Merger Application and validly issued, is fully paid and nonassessable and is owned directly the purchase by the Bank, free and clear Company of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), Bank; such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or Applications, including the Conversion Application or Plan, the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Bank Holding Company Application and the Conversion Interagency Merger Application; each of the Applications, the Bank Holding Company Application comply as to form in all material respects and the Interagency Merger Application complies with the Conversion Regulations and all other applicable requirements of the OTSDepartment, include the FDIC, the FRB and the BHCA, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge after due inquiry, truthfultruthfully, accurate and complete; complete and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxii) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, reorganization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC or the Bank; and, (BC) 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 upon any property or assets of the Company, the MHCMHC or the Bank, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, MHC or the Bank or any of the Subsidiaries 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, MHC or the Bank or any of the Subsidiaries is subject subject, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMaterial Adverse Effect.
(xvixiii) The Prospectus has and the Proxy Statement have been duly authorized by the OTS Department and the FDIC for final use pursuant to the Conversion Reorganization Regulations and no action has been takentaken or is pending, or is pending or, to the best of such counsel's knowledgeknowledge after due inquiry, is threatened, by the OTS Department or the FDIC to revoke such authorization.
(xviixiv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have or, proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xviiixv) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationPlan, except as may be required under the securities or "Blue Sky Sky" laws of various jurisdictions as to which no opinion need be rendered.
(xixxvi) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion Reorganization Regulations.
(xxxvii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixviii) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, MHC or the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, MHC or the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixix) The information in the Prospectus describing under "Risk Factors - Prudential Mutual Holding Company will own a majority of Prudential Bancorp's outstanding common stock and will be able to control the liquidation account under the captions result of most matters put to a vote of Prudential Bancorp's shareholders," "- Our common stock value may suffer from anti-takeover provisions that may impede potential takeovers that management opposes," "Our Policy Regarding Dividends," "Regulation," "Taxation," "The Conversion Offering," "Restrictions on Acquisition of Prudential Bancorp and Reorganization - Liquidation RightsPrudential Savings Bank and Related Anti-takeover Provisions" "Description of Prudential Bancorp Capital Stock," and "- Effects Legal and Tax Opinions" to the extent that it constitutes matters of Conversion law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Samples: Agency Agreement (Prudential Bancorp Inc of Pennsylvania)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Division or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx Xxxxx, L.L.P.& Xxxxxxxx LLP, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State Commonwealth of New Jersey Massachusetts and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries its subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Conversion Conversion, and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof, in compliance with all conditions imposed upon the contribution thereof by the FDIC under the terms of the Intent Not to Object in an amount described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ the date hereof and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State Commonwealth of New Jersey Massachusetts as a state-Massachusetts chartered savings and loan association of bank in stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member in good standing of the Federal Home Loan Bank of New York Boston and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xix) Upon consummation Each direct and indirect subsidiary of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered its subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries each such subsidiary are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey Massachusetts chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law Division and the rules, regulations, resolutions and practices of the New Jersey Department of BankingFDIC; all of the issued and outstanding capital stock of the Subsidiaries each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xiix) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the Conversion Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS has approved the Holding Company Application, the Division has approved the Conversion Application and the Conversion Application (including FDIC has issued its non-objection to the formation and merger of Interim A and Interim B)Plan, such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include the Division and the FDIC, respectively, except as compliance therewith has been specifically waived in writing by the provisions of the approvals by the OTS, the Division and the FDIC as the case may be, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the Bank or any of its subsidiaries; and, (BC) 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 upon any property or assets of the Companyencumbrance, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries its subsidiaries considered as one enterprise and (C) will not result in enterprise, upon any violation of the provisions of the certificate property or articles of incorporation, charter or bylaws assets of the Company, the MHCBank or its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the Bank or its subsidiaries is a party or by which any of them may be bound, or to which any of the Subsidiariesproperty or assets of the Company, the Bank or its subsidiaries is subject.
(xvixiv) The Prospectus has been duly authorized by the OTS Division for final use pursuant to the Conversion Regulations and no action has been takenis pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or threatened against or affecting the Mutual Holding Company, the MHCCompany, the Bank or the Subsidiaries that its subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Mutual Holding Company, the MHCCompany, the Bank or any of the Subsidiaries its subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization Risk Factors - Liquidation RightsEstablishment of Berkshire Hills Foundation" and "-Anti-Takeover Provisions and Statutory Provisions," "Dividend Policy," "Business of the Bank - Effects Legal Proceedings," "Federal and State Taxation of Conversion Income," "Regulation and Reorganization - Effect Supervision," "The Conversion," "Restrictions on LiquidationAcquisitions of Berkshire Hills and Berkshire Bank," and "Description of Capital Stock," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx XxxxxXxxxxxxx & Xxxxxx, L.L.P.P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under to such matters as the laws of the State of DelawareAgent shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has full corporate power 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 Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(c) At Closing Time referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Federal Reserve Board, or any other regulatory authority other than those which the Federal Reserve Board permits to ownbe completed after the Conversion.
(d) At Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business and the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and to enter into and perform its obligations under this Agreement.
transactions in the ordinary course of business consistent with past practice (iii) The Company is duly qualified as a foreign corporation neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the Federal Reserve Board, the WDFI or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and in each other jurisdiction in which such qualification is required whether by reason of adversely would affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise.
, (iv) Upon consummation the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
, (v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Mid-Tier Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency performed or similar laws and the availability of equitable remedies)satisfied at or prior to Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Federal Reserve Board's approval of the Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company, the MHC and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from KPMG LLP a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under "Selected Consolidated Financial and Other Data" or governmental proceedings to which under "Recent Developments" in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or shareholders' equity of the Mid-Tier Company, in each case as compared with the amounts shown in the June 30, 2013 consolidated balance sheets included in the Registration Statement or, (D) during the period from June 30, 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information "lock-up" agreements, each substantially in the Prospectus describing form of Exhibit D hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit E hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agent shall have received from KPMG LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(k) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Wisconsin or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxMalizia Spidi & Fisch, L.L.P.P.C., counsel for couxxxx xxr the CompanyComxxxx, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing stock holding company chartered under the laws of the State United States; the MHC has been duly organized and is validly existing as a mutual holding company chartered under the laws of Delawarethe United States; the Bank has been duly organized and is validly existing as a savings bank chartered under the laws of the United States.
(ii) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the MHC and the Bank is duly qualified as a foreign corporation to transact business and is in good standing in under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect.
(iv) Upon The Company is duly qualified as a foreign corporation to transact business and is in good standing under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(v) The authorized capital stock of the Company consists of 45,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Company is ____ shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Conversion Offerings, and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no ."
(vi) The authorized capital stock of the Bank consists of ______ shares of Common Stock have common stock, par value $__.00 per share, and the issued and outstanding capital stock of the Bank is _______ shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Timestate securities laws.
(vvii) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viviii) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law law, or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior for subscription rights granted pursuant to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the BankPlan.
(ix) The issuance of the Securities and the Foundation Shares is in compliance with all conditions imposed upon the Company, the MHC and the Bank by the OTS under the terms of its written approval.
(x) Each of the Company and the MHC is registered as a savings and holding company under the Home Owners Loan Act, as amended.
(xi) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xxii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have and each of the Subsidiaries has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are Prospectus, and is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect; the activities of each Subsidiary as described in the Subsidiaries Registration Statement and Prospectus are permitted to subsidiaries of a Federally-chartered savings and loan bank, a Federally-chartered stock holding company and of a New Jersey Federally-chartered savings bank mutual holding company by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the BankBank directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganizationencumbrance, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The Foundation is duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of New Jersey 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 savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) 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 order of approval of the Stock Issuance Application, a copy of which was provided to the Agent prior to the Closing Time; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(xiv) The OTS has duly approved the Holding Company Stock Issuance Application and the Conversion Application (including the formation and merger of Interim A and Interim B)Plan; to such counsel's knowledge, such approvals remain approval remains in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Stock Issuance Application, including the Plan. The Stock Issuance Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), ; (B) will not result in any violation of the provisions of the certificate of incorporation, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or any Subsidiary; and (C) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMaterial Adverse Effect.
(xvi) The Prospectus has been duly authorized by No approval of any regulatory or supervisory or other public authority other than the Commission or the OTS for is required in connection with the final use pursuant to of the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorizationProspectus.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission.
(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 both the Securities and the Exchange Foundation Shares and the consummation of the Conversion and Reorganizationtransactions contemplated by the Plan, except as may be required under the securities or "Blue Sky 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 (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory and regulatory requirements.
(xxi) There are no legal or governmental proceedings pending or or, to such counsel's knowledge, threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing under "Risk Factors - Persons Who Purchase Stock in the liquidation account under Offering Will Own a Minority of Roma Financial Corporation's Common Stock and Will Not Be Able to Exercise Voting Control Over Most Matters Put to a Vote of Stockholders, Including Any Proposal Regarding the captions Acquisition of Roma Financial Corporation" "Provisions in Our Charter and Bylaws Limit the Rights of Stockholders, May Deter Potential Takeovers and May Reduce the Trading Price of Our Stock," "Our Policy Regarding Dividends," "Regulation," "Taxation," "The Conversion and Reorganization - Liquidation RightsOffering," "Roma Bank Community Foundation," "Restrictions on Acquisition of Roma Financial Corporation," "Description of Capital Stock" and "- Effects Legal and Tax Opinions", to the extent that it constitutes matters of Conversion law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCAssociation, the Bank MHC and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Association and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Association and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Association and the Bank MHC of their obligations hereunder, hereunder and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Luse Xxxxxx XxxxxXxxmxx Xxxxxxxx & Xchixx, L.L.P.X.C., special counsel for the Company, the MHC Association and the BankMHC, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a federal stock corporation in good standing under the laws of the State United States; the MHC has been duly incorporated and is validly existing as a federally-chartered mutual corporation under the laws of Delawarethe United States.
(ii) The Each of the MHC and the Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Each of the MHC and the Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualified would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Association and the MHC, taken as a whole.
(iv) Upon consummation of the Reorganization and the issuance of Charitable Foundation Shares to the Charitable Foundation immediately upon completion thereof, subject to compliance with all conditions imposed upon the formation and contribution thereof by the OTS under the terms of any written notice or order of approval of the Reorganization Application or the Holding Company Application, in an amount as described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and outstanding prior to the Closing Time.
(v) The Securities and the Charitable Foundation Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Charitable Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Charitable Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The Association has been at all times since the date hereof and prior to the Closing Time organized, and is validly existing as a federal stock savings association under the laws of the United States, and, at Closing Time, has become duly organized and validly existing as a federal stock savings association, in both instances with full 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 Association is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseAssociation.
(ivviii) Upon consummation The deposit accounts of the Conversion and Reorganization, Association are insured by the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior FDIC up to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Timeapplicable limits.
(vix) The Securities and the Exchange Shares have Charitable Foundation has been duly incorporated and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and as a non-stock corporation in good standing under the laws of the United States State of America as a mutual holding company, Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and Charitable Foundation is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and within the meaning of 12 C.F.R. Section 574.2(q) as a New Jersey chartered savings bank by the rules, regulations, resolutions and practices result of the OTS and by New Jersey law and the rules, regulations, resolutions and practices issuance of the New Jersey Department shares of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, Common Stock to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable it in accordance with its terms, except as rights to indemnity the terms of the Plan and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered amounts as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained described in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are ; no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidationapprovals
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy in of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of officers and trustees of the MHC, the officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit C.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareSilver, Fxxxxxxx, Taff & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally 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, pro forma, appraisal 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, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company has full corporate power and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Closing Time referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable FRB Regulations, New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the New York Department or any other regulatory authority other than those which the FRB, the New York Department or any such other regulatory authority permit to ownbe completed after the Offerings.
(d) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to enter into or contemplated therein and perform its obligations under this Agreement.
transactions in the ordinary course of business substantially consistent with past practice, (iii) The Company is duly qualified as a foreign corporation none of the Company, the MHC or the Bank shall have received from the FRB, the New York Department or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and in each other jurisdiction in which such qualification is required whether by reason of adversely affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and this Agreement constitutes warranties in Section 1 hereof are true and correct with the legalsame force and effect as though expressly made at and as of the Closing Time, valid and binding agreement of (v) each of the Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning performed or satisfied at or prior to the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies)Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best Knowledge of such counsel's knowledgethe Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the New York Department’s approval of the New York 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 MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the FRB or the New York Department in approving the Plan in accordance with the FRB Regulations and New York Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the New York Department approving the New York Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the MHC, consent the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) 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 Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxx Txxxx Xxxxxxx Xxxxxx, 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 Bank’s ability to record, process, summarize, and report financial data, and have identified for the 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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this Agreement, the issuance of the Securities Company’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixf) At As of the time date hereof, the Agent shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the MHC or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total stockholders’ equity of the MHC, in each case as compared with the amounts shown in the September 30, 2018 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from September 30, 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 MHC, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At the Closing Time, the Agent shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than three (3) business days prior to the captions "The Conversion Closing Time.
(h) At the Closing Time, the Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(i) At the Closing Time, the MHC shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE MKT, the New York Stock Exchange or the Nasdaq shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx XxxxxXxxxxxxx & Xxxxxx, L.L.P.P.C., counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing stock holding company chartered under the laws of the State of Delaware; the MHC has been duly organized and is validly existing as a mutual holding company chartered under the laws of the State of New Jersey; the Bank has been duly organized and is validly existing as a savings bank chartered under the laws of the State of New Jersey.
(ii) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing in under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect.
(iv) Upon The Company is duly qualified as a domestic and foreign corporation to transact business and is in good standing under the law of the State of Delaware, in the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(v) The authorized capital stock of the Company consists of 200,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, par value $.01 per share, and the issued and outstanding capital stock of the Company is 50 shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Conversion Offerings, and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no ."
(vi) The authorized capital stock of the Bank consists of 5,000,000 shares of Common Stock have common stock, par value $2.00 per share, and the issued and outstanding capital stock of the Bank is 250,000 shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Timestate securities laws.
(vvii) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viviii) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law law, or, to the best of such counsel's knowledgeknowledge after due inquiry, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior for subscription rights granted pursuant to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the BankPlan.
(ix) The issuance of the Securities and the Foundation Shares is in compliance with all conditions imposed upon the Company, the MHC and the Bank by the FRB under the terms of their written approval, as applicable.
(x) Each of the Company and the MHC is registered as a bank holding company under the Bank Holding Company Act of 1956, as amended.
(xi) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xxii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have and each of the Subsidiaries has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are Prospectus, and is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect; the activities of each Subsidiary as described in the Subsidiaries Registration Statement and Prospectus are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank bank, in the case of the Bank, and a Delaware chartered stock holding company, in the case of the Company, by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingFRB; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the MHC or the Bank, as the case may be, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganizationencumbrance, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS Foundation is 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) 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 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 Modification, a copy of which was provided to the Agent prior to the Closing Time; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(xiv) The FRB has duly approved the Holding Company Application Modification and the Conversion Application (including the formation and merger of Interim A and Interim B)Plan; to such counsel's knowledge, such approvals remain approval remains in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or Modification, including the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply Plan. The Modification complies as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTSFRB, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or any Subsidiary; and, (BC) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the SubsidiariesMaterial Adverse Effect.
(xvi) The Prospectus has been duly authorized by No approval of any other regulatory or supervisory or other public authority is required in connection with the OTS for final use pursuant to of the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorizationProspectus.
(xvii) The Registration Statement is effective under the Securities Act and and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have or, proceedings therefor been initiated or, to the best of such counsel's knowledge, or threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganizationtransactions contemplated by the Plan, except as may be required under the securities or "Blue Sky 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 (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There To our actual knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing under "Risk Factors - Persons Who Purchase Stock in the liquidation account under the captions Offering Will Own a Minority of Investors Bancorp Inc.'s Common Stock and Will Not Be Able to Exercise Voting Control over Most Matters Put to a Vote of Stockholders," "Our Stock Value May be Negatively Affected by Federal Regulations Restrictively Takeovers and Our Mutual Holding Company Structure," "Our Policy Regarding Dividends," "Supervision and Regulation," "Federal and State Taxation," "The Conversion Offering," "Restrictions on the Acquisition of Investors Bancorp, Inc. and Reorganization - Liquidation RightsInvestors Savings Bank," "Description of Capital Stock of Investors Bancorp, Inc." and "- Effects Legal and Tax Matters" to the extent that it constitutes matters of Conversion law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors trustees of the Company, Bank and the MHC and the Bank officers and directors of the Company made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareSilver, Fxxxxxxx, Txxx & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally 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, pro forma, appraisal 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, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company has full corporate power and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Closing Time referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable provisions of New York Conversion Law, the Conversion Regulations, FRB Regulations, Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the NYSDFS, the FDIC or any other regulatory authority other than those which the FRB, the NYSDFS or any such other regulatory authority permit to ownbe completed after the Offerings.
(d) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to enter into or contemplated therein and perform its obligations under this Agreement.
transactions in the ordinary course of business consistent with past practice, (iii) The Company is duly qualified as a foreign corporation none of the Company, the MHC or the Bank shall have received from the FRB, the NYSDFS or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and in each other jurisdiction in which such qualification is required whether by reason of adversely affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and this Agreement constitutes warranties in Section 1 hereof are true and correct with the legalsame force and effect as though expressly made at and as of the Closing Time, valid and binding agreement of (v) each of the Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning performed or satisfied at or prior to the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies)Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best knowledge of such counsel's knowledgethe Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s and/or the NYSDFS’ approvals of the Holding Company Applications or the transactions contemplated thereby or the NYSDFS’ approval of the Conversion Application or the FDIC’s non-objection to the Conversion 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 MHC or the Bank, threatened by the FRB, the NYSDFS or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB or the NYSDFS in approving the Holding Company Applications or the NYSDFS approving or the FDIC issuing its non-objection to the Conversion Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB, the NYSDFS or the FDIC.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the MHC, consent the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) 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 Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxxxx & Co., 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 Bank’s ability to record, process, summarize, and report financial data, and have identified for the 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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this Agreement, the issuance of the Securities Company’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixf) At As of the time date hereof, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxxxx & Co., LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total net worth of the Bank, in each case as compared with the amounts shown in the March 31, 2019 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from March 31, 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Bank, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At the Closing Time, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letters furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than three (3) business days prior to the captions "The Conversion Closing Time.
(h) At the Closing Time, the Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(i) At the Closing Time, the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy in of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of officers and trustees of the MHC, the officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit C.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareSilver, Fxxxxxxx, Taff & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally 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, pro forma, appraisal 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, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company has full corporate power and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Closing Time referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable FRB Regulations, New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the New York Department or any other regulatory authority other than those which the FRB, the New York Department or any such other regulatory authority permit to ownbe completed after the Offerings.
(d) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to enter into or contemplated therein and perform its obligations under this Agreement.
transactions in the ordinary course of business substantially consistent with past practice, (iii) The Company is duly qualified as a foreign corporation none of the Company, the MHC or the Bank shall have received from the FRB, the New York Department or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and in each other jurisdiction in which such qualification is required whether by reason of adversely affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and this Agreement constitutes warranties in Section 1 hereof are true and correct with the legalsame force and effect as though expressly made at and as of the Closing Time, valid and binding agreement of (v) each of the Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning performed or satisfied at or prior to the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies)Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best Knowledge of such counsel's knowledgethe Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the New York Department’s approval of the New York 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 MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the FRB or the New York Department in approving the Plan in accordance with the FRB Regulations and New York Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the New York Department approving the New York Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the MHC, consent the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) 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 Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxx Txxxx Xxxxxxx Xxxxxx, 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 Bank’s ability to record, process, summarize, and report financial data, and have identified for the 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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this Agreement, the issuance of the Securities Company’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixf) At As of the time date hereof, the Agent shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the MHC or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total stockholders’ equity of the MHC, in each case as compared with the amounts shown in the June 30, 2018 unaudited consolidated statements of financial condition presented in the Registration Statement or, (C) during the period from June 30, 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 or net income of the MHC, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At the Closing Time, the Agent shall have received from Bxxxx Txxxx Xxxxxxx Xxxxxx, LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time.
(h) As of the date hereof and at the Closing Time, the Agent shall have received from the Company’s Chief Financial Officer a certificate dated the respective dates of delivery thereof and addressed to the Agent, in form and substance satisfactory to the Agent, with respect to certain financial information of the Company and the Subsidiaries included in the Registration Statement, the Prospectus describing and the liquidation account under Disclosure Package, in form and substance satisfactory to the captions "The Conversion Agent.
(i) At the Closing Time, the Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Closing Time, the MHC shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE MKT, the New York Stock Exchange or the Nasdaq shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxSilver, L.L.P.Fxxxxxxx & Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Kxxxxxxxxx Xxxxxxxx LLP, counsel for the laws of Agents, as to such matters as the State of DelawareAgents shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Fxxxxxxx & Taff, L.L.P. and Kxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation At Closing Time referred to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessSection 2 hereof, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgents shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering, the contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agents shall have received from Deloitte & Touche LLP a letter dated such date, in form and statistical data substance satisfactory to the Agents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and Deloitte & Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agents and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agents shall have received from Deloitte & Touche LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(k) At Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agents and counsel for the Agents.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Savings Bank and the Agent agree that the issuance and sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Savings Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Savings Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Savings Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx Xxxxx, L.L.P.& Xxxxxxxx, counsel for the Company, the MHC Company and the Savings Bank, in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey Massachusetts and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Savings Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and Reorganizationthe issuance of Foundation Shares to the Foundation immediately upon completion thereof, subject to compliance with all conditions imposed upon the formation and contribution thereof by the OTS under the terms of any written notice or order of approval of the Conversion Application or the Holding Company Application, in an amount as described in the Prospectus, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgeknowledge and information, otherwise.
(vii) The MHC Savings Bank has been at all times since the date hereof and prior to the Closing Time duly organized, and is validly existing, under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at the Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-federally chartered savings and loan association bank of stock form, in both instances with full 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 Savings Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Savings Bank and the Subsidiaries, taken as a whole.
(viii) The Savings Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Savings Bank are insured by the FDIC up to the applicable limits.
(ix) Each of the Subsidiaries considered has been duly incorporated and is validly existing as one enterprisea corporation in good standing under the laws of the state of Massachusetts, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Company, the Savings Bank and the Subsidiaries, taken as a whole; the activities of each Subsidiary as described in the Subsidiaries Prospectus are permitted to subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, Savings Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xiix) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval of the Conversion Application or the Holding Company Application copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Savings Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiiixii) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application (including therewith, the establishment of the Foundation and the contribution of shares of Common Stock thereto) or the acquisition by the Company of all of the Savings Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and, to best of such counsel's knowledge, include all documents required to be filed as exhibits thereto, and isis complete in all material respects, excluding the Prospectus and any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to the best of such counsel's knowledge, truthful, accurate and completewhich no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Savings Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC Company and the Savings Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC Company and the Savings Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to the best of such counsel's knowledge, 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business of the Company, the Savings Bank and the Subsidiaries, taken as a whole, upon any property or assets of the Company, the MHC, the Savings Bank or any of the Subsidiaries Subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Savings Bank or any of the Subsidiaries Subsidiary 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 Savings Bank or any of the Subsidiaries Subsidiary is subject thatsubject, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Savings Bank or the Subsidiariesany Subsidiary.
(xvixiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 1933 Act nor have or proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Foundation Shares and the consummation of the Conversion and ReorganizationConversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities 1933 Act Regulations, and the Conversion 1933 Act Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHCSavings Bank, the Bank any Subsidiary or the Subsidiaries Foundation that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Savings Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects -Effects of Conversion and Reorganization - Effect on LiquidationLiquidation Rights," and the information under "Risk Factors - Establishment of the Charitable Foundation," " -Recapitalization of SAIF and its Impact on SAIF Premiums," "Financial Institution Regulation and Possible Legislation," "- Certain Anti-takeover Provisions Which May Discourage Takeover Attempts," " - Possible Adverse Income Tax Consequences of the Distribution of Subscription Rights," "Dividend Policy," "Federal and State Taxation," "Regulation," "The Conversion," "Restrictions on Acquisition of the Company and the Bank," "Description of Capital Stock of the Company" and "Description of Capital Stock of the Bank" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, is complete in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx XxxxxXxxxxxxx & Xxxxxx, L.L.P.P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxx XxXxxxxxx, counsel for the Agent, providing that:as attached hereto as Exhibit C.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxx XxXxxxxxx LLP shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgent shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the MHC, the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the MHC, appraisal the Mid-Tier Company and statistical data the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, the Agent shall have received from Xxxxxxxxx, XxxXxxx & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Xxxxxxxxx, XxxXxxx & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the MHC, in each case as compared with the amounts shown in the December 31, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 MHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Xxxxxxxxx, XxxXxxx & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland, New York or Massachusetts authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the “Blue Sky Survey”) from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus describing to the liquidation account under Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on LiquidationAgent may rely.
Appears in 1 contract
Samples: Agency Agreement (Peoples Federal Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank Association and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank Association herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank Association made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank Association of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of Closing Time, of Mxxxxxx Xxxxxx Xxxxx, L.L.P.& Aguggia LLP, counsel for the Company, the MHC and the BankAssociation, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica.
(ii) The Company MHC has full been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America.
(iii) The Association has been duly organized and is validly existing as a federal savings association in stock form chartered under the laws of the United States of America.
(iv) Each of the Company, the MHC and the Association 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 AgreementAgreement and the transactions contemplated hereby.
(iiiv) The Company is duly qualified as a foreign corporation Association has authority to transact its business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseYork.
(ivvi) Upon The authorized capital stock of the Company consists of 7,000,000 shares of Common Stock and 3,000,000 shares of preferred stock, par value $.01 per share, of which no shares are issued and outstanding; immediately upon consummation of the Conversion Offerings, all of the issued and Reorganizationoutstanding 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 authorized, Offerings the issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time".
(vvii) The authorized capital stock of the Association consists of 1,000 shares of common stock, par value $1.00 per share, all of the issued and outstanding capital stock of the Association is 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 Securities Act pursuant to Section (3)(a)(5) thereof.
(viii) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and issued, fully paid and non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viix) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to federal laws and regulations or the best of Company's charter.
(x) To such counsel's actual knowledge, otherwisethe Company, the MHC and the Association have conducted the Offerings 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 May 14, 2007 and May 14, 2007 approving the MHC 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 Application and the effectiveness of the Prospectus), and have satisfied all conditions precedent to the issuance of the Securities imposed upon them by the OTS under the terms of the OTS's written approval of the MHC Application.
(viixi) The MHC Association is validly existing and a member in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the York.
(xii) The deposit accounts of the Bank Association are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx XxxxxXxxxxxxx & Xxxxxx, L.L.P.P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the laws of Agents, as to such matters as the State of DelawareAgents shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation At Closing Time referred to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessSection 2 hereof, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business and this Agreement constitutes the legalAgents shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agents shall have received from KPMG LLP a letter dated such date, in form and statistical data substance satisfactory to the Agents, to the effect that: (i) for the three-year period ended December 31, 2009 and the three month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended December 31, 2009 and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein(B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Northfield Bancorp, Inc. and all pending legal Subsidiaries” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated balance sheets included in the Registration Statement or, (D) during the period from March 31, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit C hereto, between the liquidation account under Agents and the captions "The Conversion persons set forth on Exhibit D hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agents shall have received from KPMG LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(k) At Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agents and counsel for the Agents.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Muldxxx, Xxxxxx Xxxxx& Xaucxxxx, L.L.P., xxecial counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State Commonwealth of New Jersey Pennsylvania and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered Subsidiary taken as one enterprisea whole.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Foundation Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on LiquidationFoundation immediately upon
Appears in 1 contract
Samples: Agency Agreement (Northeast Pennsylvania Financial Corp)
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors trustees of the Company, Bank and the MHC and the Bank officers and directors of the Company made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxxx XxxxxLxxx Xxxxxx, L.L.P.PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under the laws of the State Closing Time, of DelawareSilver, Fxxxxxxx, Txxx & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require.
(ii3) The In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally 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, pro forma, appraisal 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, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers, trustees and directors, as applicable, of the MHC, the Company has full corporate power and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC.
(c) At the Closing Time referred to in Section 2 hereof, the Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable provisions of New York Conversion Law, the Conversion Regulations, FRB Regulations, Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the NYSDFS, the FDIC or any other regulatory authority other than those which the FRB, the FDIC, the NYSDFS or any such other regulatory authority permit to ownbe completed after the Offerings.
(d) At the Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to enter into or contemplated therein and perform its obligations under this Agreement.
transactions in the ordinary course of business consistent with past practice, (iii) The Company is duly qualified as a foreign corporation none of the Company, the MHC or the Bank shall have received from the FRB, the NYSDFS or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and in each other jurisdiction in which such qualification is required whether by reason of adversely affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and this Agreement constitutes warranties in Section 1 hereof are true and correct with the legalsame force and effect as though expressly made at and as of the Closing Time, valid and binding agreement of (v) each of the Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning performed or satisfied at or prior to the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies)Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated or, to the best knowledge of such counsel's knowledgethe Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s and/or the NYSDFS’ approvals of the Holding Company Applications or the transactions contemplated thereby or the NYSDFS’ approval of the Conversion Application or the FDIC’s non-objection to the Conversion 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 MHC or the Bank, threatened by the FRB, the NYSDFS or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB or the NYSDFS in approving the Holding Company Applications or the NYSDFS approving or the FDIC issuing its non-objection to the Conversion Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB, the NYSDFS or the FDIC.
(xviiie) No further approvalAt the Closing Time, authorizationthe Agent shall have received a certificate of the Chief Executive Officer of the MHC, consent the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) 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 Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxxxx & Co., 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 Bank’s ability to record, process, summarize, and report financial data, and have identified for the 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 order of any public board or body is required employees who have a significant role in connection with the execution and delivery of this Agreement, the issuance of the Securities Company’s and the Exchange Shares Bank’s disclosure controls and the consummation of the Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be renderedprocedures.
(xixf) At As of the time date hereof, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxxxx & Co., LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the Conversion Regulations.
(xx) The Common Stock conforms to General Disclosure Package do not agree with the description thereof contained amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited consolidated financial statements included in the Registration Statement, including ordinary routine litigation incidental the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long-term or short-term debt of the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, deposits or net worth of the Bank, in each case as compared with the amounts shown in the March 31, 2019 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from April 1, 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Bank, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter.
(xxiig) The information At the Closing Time, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letters furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than three (3) business days prior to the captions "The Conversion Closing Time.
(h) At the Closing Time, the Securities and Reorganization - Liquidation Rights" the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(i) At the Closing Time, the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationany of the NYSE American, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxMalizia Spidi & Fisch, L.L.P.PC, counsel for the Companyxxxxxxx xxx xxx Xxxxxxy, the xxx MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica; the MHC has been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America; the Bank has been duly organized and is validly existing as a federal savings bank chartered under the laws of the United States of America.
(ii) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the Company, the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing under the laws of the United States of America, in the State of New Jersey and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank MHC and the Subsidiaries Bank, considered as one enterprise.
(iv) Upon The authorized capital stock of the Company consists of 75,000,000 shares of Common Stock and 25,000,000 shares of preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Company is 10,000 shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Conversion Offerings and Reorganizationthe issuance of the MHC Shares, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time."
(v) The authorized capital stock of the Bank consists of 75,000,000 shares of common stock, par value $0.10 per share, and 25,000,000 shares of serial preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Bank is _____ shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and state securities laws.
(vi) The Securities and the Exchange MHC Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vivii) The issuance of the Securities and the Exchange MHC Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgeknowledge after due inquiry, otherwise.
(viiviii) The Company is issuing the Securities and the MHC Shares in compliance with all conditions imposed upon the Company, the MHC and the Bank by the OTS under the terms of their written approval or notice of intention not to object, as applicable.
(ix) Each of the Company and the MHC is registered as a savings and loan holding company under the Home Owners Loan Act.
(x) The Bank is a member in good standing of the Federal Home Loan Bank of Boston and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xi) Each Subsidiary has been duly incorporated and is validly existing and as a corporation in good standing under the laws of the United States jurisdiction of America as a mutual holding companyits incorporation, with and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise; the activities of the Subsidiaries each Subsidiary are permitted to for subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank bank, in the case of the Bank, and a federally chartered stock holding company, in the case of the Company, by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the MHC or the Bank, as the case may be, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganizationencumbrance, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, MHC and the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of and their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx, Xxxxxx Xxxxx, L.L.P.& Xxxxxxxx, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State United States of DelawareAmerica.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the MHC and the Bank and the Subsidiaries their subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Conversion Conversion, and Reorganizationthe issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and and, except for shares issued upon formation of the Company, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange RatioPlan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgetheir knowledge and information, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ 1995 and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State United States of New Jersey America as a state-federally chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and loan association in good standing under the laws of the United States of America as a federally chartered savings bank of stock form, in both instances with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixviii) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) . Upon consummation of the Conversion and ReorganizationConversion, all the rights of the issued and outstanding capital stock members of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock the Bank in its mutual form will be converted into shares of Bank Common Stock upon transferred to the merger of Interim B MHC in accordance with the Bank Plan and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claimthe MHC Regulations.
(xiix) The Subsidiaries have Each direct and indirect subsidiary of the Bank has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the MHC and the Bank and the Subsidiaries considered their subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries each such subsidiary are permitted to subsidiaries of a savings and loan association holding company and of a New Jersey federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xiix) 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 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 are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the Conversion Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiiixii) The OTS has duly approved the Holding Company Application and the Conversion MHC Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion MHC Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or bylaws of the Company, the Bank or any of its subsidiaries; and, (BC) 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 upon any property or assets of the Companyencumbrance, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC and the Bank and the Subsidiaries their subsidiaries considered as one enterprise and (C) will not result in enterprise, upon any violation of the provisions of the certificate property or articles of incorporation, charter or bylaws assets of the Company, the MHC, MHC and the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use their subsidiaries pursuant to the Conversion Regulations and no action has been takenany contract, or is pending orindenture, to the best of such counsel's knowledgemortgage, is threatenedloan agreement, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated ornote, to the best of such counsel's knowledge, threatened by the Commission.
(xviii) No further approval, authorization, consent lease 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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings instrument to which the Company, the MHC, MHC and the Bank or any of the Subsidiaries their subsidiaries 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 and the Bank or their property subsidiaries is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not materialsubject.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx LLP and Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations or operations, business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and this Agreement constitutes the legalAgent shall have received a certificate of the President and Chief Executive Officer of the Company, valid of the Mid-Tier Company, of the MHC and binding agreement of each the Bank and the chief financial or chief accounting officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC and or the Bank, enforceable as set forth in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws Registration Statement and the availability of equitable remedies), (B) will not conflict with Prospectus other than transactions referred to or constitute a breach of, or default under, contemplated therein and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result transactions in the creation or imposition ordinary course of any lien, charge or encumbrance upon any property or assets of business consistent with past practice (iii) neither the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Mid-Tier Company, the MHC, MHC nor the Bank shall have received from the OTS any order or direction (oral or written) to make any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or material change in the aggregatemethod of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would have a material adverse effect on affect the business, financial condition, results of operations or business affairs prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise enterprise, (iv) the representations and (C) will not result warranties in any violation Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the provisions of the certificate or articles of incorporationClosing Time, charter or bylaws (v) each of the Company, the MHCMid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or the Subsidiaries.
satisfied at or prior to Closing Time, (xvivi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from Deloitte & Touche LLP a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Deloitte & Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the June 30, 2008 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from June 30, 2008 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the captions "The Conversion Securities and Reorganization - Liquidation Rights" Exchange Shares shall have been approved for quotation on the Nasdaq Global Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and "- Effects opinions as they may require for the purpose of Conversion enabling them to pass upon the issuance and Reorganization - Effect sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.______________, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing federal stock holding company chartered under the laws of the State United States of DelawareAmerica; the MHC has been duly organized and is validly existing as a federal mutual holding company chartered under the laws of the United States of America; the Bank has been duly organized and is validly existing as a federal savings bank chartered under the laws of the United States of America and at the closing time will be duly organized and validly existing in stock form.
(ii) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iii) The Company Each of the Company, the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing under the laws of the United States of America, in the State of New Jersey ___________and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect.
(iv) Upon The authorized capital stock of the Company consists of _______ shares of Common Stock and ___________ shares of preferred stock, par value $.01 per share, and the issued and outstanding capital stock of the Company is ____ shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Conversion Offerings[, and Reorganization, the authorized, issuance of the Foundation Shares to the Foundation immediately upon completion thereof,] the authorized issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time".
(v) The Securities authorized capital stock of the Bank consists of _________shares of common stock, par value $[.01] per share, and _____ shares of serial preferred stock, par value $[.01] per share, and the Exchange Shares issued and outstanding capital stock of the Bank is _____ shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and state securities laws.
(vi) The Securities have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(vivii) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of the law or, to the best of such counsel's knowledgeknowledge after due inquiry, otherwise, except for subscription rights granted pursuant to the Plan.
(viiviii) The issuance of the Securities is in compliance with all conditions imposed upon the Company, the MHC and the Bank by the OTS under the terms of their written approval or notice of intention not to object, as applicable.
(ix) Each of the Company and the MHC is registered as a savings and loan holding company under the Home Owners Loan Act.
(x) The Bank is a member in good standing of the Federal Home Loan Bank of ______ and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xi) Each Subsidiary has been duly incorporated and is validly existing and as a corporation in good standing under the laws of the United States jurisdiction of America as a mutual holding companyits incorporation, with and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus Prospectus, and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseMaterial Adverse Effect; the activities of the Subsidiaries each Subsidiary are permitted to subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank bank, in the case of the Bank, and a federally chartered stock holding company, in the case of the Company, by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the MHC or the Bank, as the case may be, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganizationencumbrance, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiiixii) The OTS has duly approved the Holding Company Application and the Conversion Application (MHC Application, including the formation and merger of Interim A and Interim B), Plan; such approvals remain approval remains in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Plan. such approval remains in full force and effect and no action is pending, or to such counsel's knowledge, threatened respecting the Holding Company Application or and the Conversion Application or MHC Application, including the acquisition by the Company of all of the Bank's issued and outstanding capital stockPlan; the Holding Company Application and the Conversion Application MHC Application, including the Plan comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthfultruthfully, accurate and complete; complete (other than the financial statements, notes to financial statements and tabular, statistical and appraisal data included therein, as to which no opinion need be rendered) and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xvxiii) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, reorganization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or any Subsidiary; and, (BC) 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 encumbrance, that, individually or in the aggregate, would have a Material Adverse Effect or a material adverse effect upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariessubject.
(xvixiv) The Prospectus and the Proxy Statement has been duly authorized by the OTS for final use pursuant to the Conversion OTS Regulations and no action has been takentaken or is pending, or is pending or, to the best of such counsel's knowledgeknowledge after due inquiry, is threatened, by the OTS to revoke such authorization.
(xviixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have or, proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xviiixvi) 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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationPlan, except as may be required under the securities or "Blue Sky Sky" laws of various jurisdictions as to which no opinion need be rendered.
(xixxvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion OTS Regulations.
(xxxviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxixix) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries Subsidiary is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxiixx) The information in the Prospectus describing the liquidation account under the captions "Risk Factors - _________will own a majority of our common stock and will be able to exercise voting control over most matters put to a vote of shareholders, including preventing a sale, a merger or a second-step conversion transaction you may find advantageous," "- Office of Thrift Supervision policy on remutualization transactions could prohibit acquisition of ___________, which may lower 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," "The Conversion and Reorganization - Liquidation RightsStock Offering," "Restrictions on Acquisition of _________" "Description of _________Capital Stock," and "- Effects Legal and Tax Opinions" to the extent that it constitutes matters of Conversion law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and Reorganization - Effect on Liquidationis complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Mid-Tier HC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC MHC, the Mid-Tier HC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC MHC, the Mid-Tier HC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC MHC, the Mid-Tier HC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxMalizia Spidi & Fisch, L.L.P.PC, counsel coxxxxx for the CompanyCxxxxxy, the MHC MHC, the Mid-Tier HC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareNew Jersey; the MHC has been duly incorporated and is validly existing as a federal mutual holding company in good standing under the laws of the United States; the Mid-Tier HC has been duly incorporated and is validly existing as a federally-chartered holding company in good standing under the laws of the United States.
(ii) The Company Each of the Company, the MHC and the Mid-Tier HC has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company Each of the Company, the MHC and the Mid-Tier HC is duly qualified as a domestic or foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank MHC, the Mid-Tier HC and the Subsidiaries Bank, considered as one enterprise. Each of the Company, the MHC and the Mid-Tier HC are registered as a savings and loan holding company under HOLA.
(iv) Upon consummation of the Conversion and ReorganizationConversion, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and and, no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale; the Exchange Shares have been duly and validly authorized for issuance and saleissuance; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratioissued, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledgeknowledge after due inquiry, otherwise.
(vii) The MHC is validly existing Upon completion of the Conversion, the issuance of the Securities will be in compliance with all conditions imposed upon the Company, the MHC, the mid-Tier HC and in good standing the Bank and by the OTS under the laws terms of the United States their written approval or notice of America intention not to object, as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHCapplicable.
(viii) The Bank has been at all times since _________________ the date hereof and prior to the Closing Time Time, duly organized, organized and is validly existing and in good standing under the laws of the State United States of New Jersey America as a state-federally chartered savings and loan association of bank in stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the ProspectusProspectus and to enter into and perform its obligations under this Agreement; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or operations, business affairs or prospects of the Company, the MHC, the Mid-Tier HC and the Bank, considered as one enterprise.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of Interim B No. 3 will have been duly authorized, authorized and validly issued and fully paid and nonassessablenon-assessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B No. 3 with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xi) The Subsidiaries have Each Subsidiary has been duly incorporated and are is validly existing as corporations a corporation in good standing under the laws of the state jurisdiction of New Jerseyits incorporation, have and each of the Subsidiaries has full corporate power and authority to own, lease and operate their its properties and to conduct their its business as described in the Prospectus Registration Statement and are is duly qualified as a foreign corporations corporation to transact business and are is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations operations, business affairs or business prospects of the Company, the MHC, the mid-Tier HC, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole; the activities of the Subsidiaries each Subsidiary are permitted to subsidiaries of a savings and loan holding company and of a New Jersey federally chartered savings bank bank, as applicable, by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of BankingOTS; all of the issued and outstanding capital stock of the Subsidiaries each Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable non-assessable and is owned directly by the BankBank or the Mid-Tier MHC, as applicable, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or claimequity.
(xii) Upon consummation of the Conversion and ReorganizationConversion, all of the issued and outstanding capital stock of the Bank Bank, will be duly authorized and validly issued and fully paid and nonassessablenon-assessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance encumbrance, claim or legal or equitable claimequity.
(xiii) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim BXx. 0, Xxxxxxx Xx. 0 xxx Xxxxxxx Xx. 0), such approvals ; xxxx xpprovals remain in full force and effect and no action is pending orpending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledgeknowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The New Jersey Department At the time of Banking has approved their use, both the New Jersey Application, Members' Proxy Statement and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies Stockholders' Proxy Statement complied as to form in all material respects with New Jersey law and regulations and all other applicable the requirements of the New Jersey Department of BankingOTS Regulations and the Exchange Act Regulations, and includes all documents did not contain an untrue statement of a material fact or omit to state a material fact required to be filed as exhibits theretostated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC MHC, the Mid-Tier HC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC MHC, the Mid-Tier HC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or bylaws of the Company, the MHC, the Mid-Tier HC or the Bank; and, (BC) 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 encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the MHC, the Mid-Tier HC, the Bank and the Subsidiaries, considered as one enterprise, upon any property or assets of the Company, the MHC, the Mid-Tier HC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier HC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHCMid-Tier HC, the Bank or the SubsidiariesSubsidiaries is subject.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion OTS Regulations and no action has been takentaken or is pending, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have or, proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and ReorganizationConversion, 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 (other than the financial statements, appraisal statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, Act and the Securities Act Regulations, Regulations and the Conversion OTS Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Mid-Tier HC, the Bank or the Subsidiaries that which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Mid-Tier HC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "Risk Factors - We Operate in a Highly Regulated Environment and May be Adversely Affected by Changes in Laws and Regulations" "Dividend Policy," "Taxation," "Regulation," "The Conversion and Reorganization - Liquidation RightsEffect of the Conversion on Minority Stockholders," and "- Effects of Conversion on Depositors, Borrowers and Reorganization Members," and "- Effect Federal and State Tax Consequences of the Conversion," "Restrictions on LiquidationAcquisition of Synergy Financial Group, Inc." "Description of Capital Stock," and "Legal and Tax Opinions" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Samples: Agency Agreement (Synergy Financial Group Inc /Nj/)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, Company the MHC and the Bank of their obligations hereunder, and to the following further conditions:
21 22 (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Superintendent or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx XxxxxElias, L.L.P.Matz, Tierxxx & Xerrxxx X.X.P., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey York, and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to be so qualify qualified would not have a material adverse effect upon the financial condition, results of operations operation or business of the Company, the Bank and the Subsidiaries considered Subsidiaries, taken as one enterprisea whole.
(iv) Upon consummation of the Conversion Conversion, and Reorganizationissuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been or will be issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securitiessale and, when issued and delivered by the Company 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 non-assessable; or contributed by the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock Company pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance Plan in the case of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor have proceedings therefor been initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act, the Securities Act Regulations, and the Conversion Regulations.
(xx) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on LiquidationFoundation
Appears in 1 contract
Samples: Agency Agreement (Independence Community Bank Corp)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Lxxx Xxxxxx XxxxxXxxxxxxx & Sxxxxx, L.L.P.P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of Closing Time, of Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP, counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under to such matters as the laws of the State of DelawareAgent shall reasonably require.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx Xxxxxxxx & Sxxxxx, P.C. and Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP shall each additionally state that nothing has full corporate power 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 Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, 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, Lxxx Xxxxxx Xxxxxxxx & Sxxxxx, P.C. and Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx Xxxxxxxx & Sxxxxx, P.C.
(c) At Closing Time referred to in Section 2 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Federal Reserve Board, or any other regulatory authority other than those which the Federal Reserve Board permits to ownbe completed after the Conversion.
(d) At Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business and the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and to enter into and perform its obligations under this Agreement.
transactions in the ordinary course of business consistent with past practice (iii) The Company is duly qualified as a foreign corporation neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the Federal Reserve Board, the WDFI or the FDIC any order or direction (oral or written) to transact business and is in good standing make any material change in the State method of New Jersey conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and in each other jurisdiction in which such qualification is required whether by reason of adversely would affect the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business prospects of the Company, the Bank and Mid-Tier Company, the Subsidiaries MHC or the Bank, considered as one enterprise.
, (iv) Upon consummation the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
, (v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Mid-Tier Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency performed or similar laws and the availability of equitable remedies)satisfied at or prior to Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Federal Reserve Board’s approval of the Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company, the MHC and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from KPMG LLP a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included therein, as to which no opinion need be rendered) complied in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” or governmental proceedings to which under “Recent Developments” in the Company, Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such captions or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or shareholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2013 consolidated balance sheets included in the Registration Statement or, (D) during the period from March 31, 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information “lock-up” agreements, each substantially in the Prospectus describing form of Exhibit D hereto, between the liquidation account under Agent and the captions "The Conversion persons set forth on Exhibit E hereto, relating to sales and Reorganization - Liquidation Rights" certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and "- Effects shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agent shall have received from KPMG LLP a letter, dated as of Conversion Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At Closing Time, the Securities and Reorganization - Effect Exchange Shares shall have been approved for quotation on Liquidationthe Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal.
(k) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Wisconsin or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Division, the FDIC or the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1i) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxx Procter LLP, counsel for the Company, the MHC Bank, and the Bank, MHC in form and substance satisfactory to counsel for the Agent, providing that:
(i) The Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of DelawareExhibit A hereto.
(ii) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxxxx & Wood LLP ("Xxxxxxx Xxxxxxxx"), counsel for the Agent, with respect to the matters as the Agent may reasonably require.
(iii) In giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxx Procter and Xxxxxxx Xxxxxxxx shall each additionally 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 or that the Prospectus and the General Disclosure Package as of the effectiveness of the Registration Statement and as of the Closing Date, 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, notes to financial statements, stock valuation information and schedules and other financial, tabular or statistical data included therein, as to which counsel need make no statement). In giving their opinions, Xxxxxxx Procter and Xxxxxxx Xxxxxxxx may rely as to matters of fact on certificates of officers and directors of the Company has full corporate power and the Bank, certificates of the officers and trustees of the MHC, and certificates of public officials, and Xxxxxxx Xxxxxxxx may also rely on the opinion of Xxxxxxx Procter.
(c) At Closing Time referred to in Section 2, the Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the Division, or any other regulatory authority other than those which the Division permits to ownbe completed after the Conversion.
(d) At Closing Time, lease and operate its properties and to conduct its business there shall not have been, since the date hereof or since the respective dates as described of which information is given in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of General Disclosure Package, including the ownership or leasing of property or the conduct of businessProspectus, except where the failure to so qualify would not have a any material adverse effect upon change in the financial condition, results of operations operations, business affairs or business prospects of the Company, the Bank and the Subsidiaries MHC considered as one enterprise.
(iv) Upon consummation , whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the Conversion President and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business Chief Executive Officer of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rulesMHC, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions Chief Financial Officer and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs Principal Accounting Officer of the Company, the Bank and the Subsidiaries considered MHC, dated as one enterprise and of Closing Time, to the effect that (Ci) will not result in any violation there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Bank or the MHC from the latest date as of which the financial condition of the provisions Company or the Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of the certificate or articles of incorporationbusiness consistent with past practice, charter or bylaws (iii) none of the Company, the MHCBank or the MHC shall have received from the Division, the FDIC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Company, the Bank or the Subsidiaries.
MHC, (xviiv) The Prospectus has been duly authorized by the OTS for final use pursuant representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to the Conversion Regulations and no action has been takenbe performed or satisfied at or prior to Closing Time, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the Division, the FDIC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, threatened the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the Company, the Bank and the MHC as of and for the dates and periods covered by the CommissionRegistration Statement and the General Disclosure Package, including the Prospectus.
(xviiif) No further approval, authorization, consent or other order At the time of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance Agent shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Company, the Bank and the MHC within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act, the Securities Act Regulations and the Exchange Shares Conversion Regulations, they are registered with the PCAOB, and the consummation they are not in violation of the Conversion auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and Reorganization, 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 supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no covered by their opinion need be rendered) complied therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the MHC and the Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, other than those disclosed therein, (B) the unaudited amounts of net interest income and all pending legal net income set forth under "Selected Consolidated and Other Financial Data" or governmental proceedings to which under "Recent Developments" in the Company, Registration Statement and Prospectus do not agree with the MHC, amounts set forth in unaudited consolidated financial statements as of and for the Bank dates and periods presented under such caption or any of such amounts were not determined on a basis substantially consistent with that used in determining the Subsidiaries is a party or to which any of their property is subject which are not described corresponding amounts in the audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Bank and the MHC, in each case as compared with the amounts shown in the statements of financial conditions included in the Registration Statement or, (D) during the period from October 1, 2007 to a specified date not more than five days prior to the date of this Agreement, 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 MHC and the Bank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Bank and the MHC identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (d) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the captions "The Conversion Securities shall have been approved for listing on the Nasdaq Global Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and Reorganization - Liquidation Rights" opinions as they may require for the purpose of enabling them to pass upon the issuance and "- Effects sale of Conversion the Securities and Reorganization - Effect the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Global Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, New York or Massachusetts authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings Subscription and Community Offering or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Silver, Xxxxxxxx & Taff, L.L.P., counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx LLP and Silver, Xxxxxxxx & Taff, L.L.P. shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations change in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation chief financial or chief accounting officer of the provisions Company, of the certificate Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or articles the Bank from the latest date as of incorporation, charter or bylaws which the financial condition of the Company, the MHCMid-Tier Company, the Bank MHC or the Subsidiaries.
Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (xviiii) The Prospectus has been duly authorized by neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the OTS for final use pursuant any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Conversion Regulations Agent) or which materially and no action has been takenadversely would affect the business, financial condition or is pending orresults of operations of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to the best of such counsel's knowledgebe performed or satisfied at or prior to Closing Time, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from ParenteBeard LLC a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) for the two-year period ended September 30, 2010, they were the independent public accountants with respect to the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) based upon limited procedures as agreed upon by the Agent and ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included therein, as to which no opinion need be rendered) complied in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from September 30, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iii) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (ii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from ParenteBeard LLC a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the captions "The Conversion Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(i) At Closing Time, counsel for the Agent shall have been furnished with such documents and Reorganization - Liquidation Rights" opinions as they may require for the purpose of enabling them to pass upon the issuance and "- Effects sale of Conversion the Securities and Reorganization - Effect Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(j) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxx, L.L.P.& Aguggia LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing to the effect that:
(i) At the Closing Time, the Company will be duly organized and validly existing as a federal stock holding company chartered under the laws of the United States of America.
(ii) At the Closing Time, the MHC will be duly organized and validly existing as a federal mutual holding company chartered under the laws of the United States of America.
(iii) The Company has been duly incorporated and Bank is validly existing as a corporation in good standing federal savings bank chartered under the laws of the State United States of DelawareAmerica and, at the Closing Time, will be duly organized and validly existing in stock form.
(iiiv) The Company Each of the Company, the MHC and the Bank has full 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 AgreementAgreement and the transactions contemplated hereby.
(iiiv) The Company is duly qualified as a foreign corporation Bank has authority to transact its business and is in good standing in the State States of Pennsylvania and New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterpriseJersey.
(ivvi) Upon The authorized capital stock of the Company consists of 36,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01 per share, of which no shares are issued and outstanding; immediately upon consummation of the Conversion Reorganization and Reorganizationthe Offerings, all of the authorizedissued 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 Offerings and the issuance of the Foundation Shares to the Foundation the issued and outstanding capital stock of the Company will be as within the range set forth in the Prospectus under "“Capitalization," .”
(vii) Immediately upon consummation of the Reorganization and no the Offerings, the authorized capital stock of the Bank will consist of 4,000 shares of Common Stock have been 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 remain outstanding prior to the Closing Time other than the shares issued to capital stock of the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at duly authorized and validly issued, fully paid and non-assessable and owned beneficially and of record by the Closing TimeCompany free and clear of any security interest, mortgage, pledge, lien or encumbrance and exempt from registration under the Securities Act pursuant to Section (3)(a)(5) thereof.
(vviii) The Securities and the Exchange Foundation Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the PlanPlan or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and issued, fully paid and non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessablenonassessable.
(viix) The issuance of the Securities and the Exchange Foundation Shares is are not subject to preemptive or other similar rights arising by operation of law or, to federal laws and regulations or the best of such counsel's knowledge, otherwiseCompany’s charter.
(viix) The To such counsel’s actual knowledge, the Company, the MHC is validly existing and the Bank have conducted the Offerings and the establishment and funding of the Foundation in good standing 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 , 2006 and , 2006 approving the MHC Application, the Holding Company 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 Application, the Holding Company Application and the effectiveness of the Prospectus), and have satisfied all conditions precedent to the issuance of the Securities and the Foundation Shares imposed upon them by the OTS under the laws terms of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs OTS’s written approval of the MHCMHC Application and the Holding Company Application.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full 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 Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ixxi) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the Pittsburgh.
(xii) The deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B)MHC Application; to such counsel’s actual knowledge, such approvals remain approval remains in full force and effect and no action by the OTS to suspend the effectiveness of such approval or to suspend the Offerings is pending or, or threatened and no person has sought to obtain review of the best final action of such counsel's knowledge, threatened respecting the OTS in approving the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stockMHC Application; the Holding Company Application and the Conversion MHC Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTSapplication Form H-(e)1-S, include all documents required to Form MHC-1 and Form MHC-2, as the case may be filed as exhibits thereto(it being understood, and ishowever, that (i) no opinion need be rendered with respect to the best of such counsel's knowledgefinancial statements or other financial and statistical data included in, truthfulor omitted from, accurate and complete; the Holding Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of Application or the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey MHC Application, and such approval remains (ii) in full force and effect and no action is pending or, to passing upon the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies compliance as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department Holding Company Application and the MHC Application, counsel need not assume any responsibility for the accuracy, completeness or fairness of Bankingthe 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.
(xvxiv) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution of the Foundation Shares and cash to the Foundation, (A) have been duly and validly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, and this (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 terms, except as rights to indemnity and contribution hereunder thereunder may be limited under applicable law law, and subject to the qualification that (it being understood 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 counsel may avail itself of customary exceptions concerning enforceability is considered in a proceeding in equity or at law) and to the effect of bankruptcy, insolvency or similar certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies), (B) will not conflict with or constitute a breach of, or default under, including the remedies of specific performance 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiariesself-help.
(xvi) The Prospectus Registration Statement has been duly authorized declared effective by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective Commission under the Securities Act 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 Securities Act nor and no proceedings for such purpose have proceedings therefor been initiated or, to the best of such counsel's knowledge, 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, Agreement the issuance of the Securities and pursuant to the Exchange Shares and the consummation of the Conversion and ReorganizationPlan, except as may be required under the securities or “Blue Sky 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 (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable requirements of under the Securities Act, Act and the Securities Act Regulations; it being understood, and the Conversion Regulations.
however, that (xxi) The Common Stock conforms no opinion need be rendered with respect to the description thereof contained in the Prospectusfinancial statements or other financial and statistical data included in, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Companyomitted from, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidationand
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of the Securities and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, providing that:Agents as attached hereto as Exhibit A.
(i2) The Company has been duly incorporated and is validly existing favorable opinion, dated as a corporation in good standing under of Closing Time, of Xxxxx Lovells US LLP, counsel for the laws of Agents, addressing such matters the State of DelawareAgents may reasonably request.
(ii3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxxx Lovells US LLP shall each additionally state that nothing has full corporate power and authority come to own, lease and operate its properties and their attention that would lead them to conduct its business as described in 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 enter into and perform its obligations which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, 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 this Agreementwhich they were made, not misleading.
(iiic) The Company is duly qualified as a foreign corporation to transact business and is in good standing in At the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of businessClosing Time, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS or any other regulatory authority, other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at At the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; , any Material Adverse Effect.
(e) At the Closing Time, the Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is requiredchief financial or chief accounting officer of the Company, except where of the failure to so qualify would not have a material adverse effect upon Mid-Tier Company, of the financial condition, results of operations or business affairs MHC and of the Bank.
, dated as of Closing Time, to the effect that (ixi) The Bank there has been no Material Adverse Effect since the date hereof or since the respective dates as of which information is a member of given in the Federal Home Loan Bank of New York Registration Statement and the deposit accounts of Prospectus, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank are insured by from the FDIC up to the applicable limits.
(x) Upon consummation latest date as of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business condition of the Company, the Mid-Tier Company, the MHC or the Bank has been set forth in the Registration Statement and the Subsidiaries considered as one enterprise; Prospectus other than transactions referred to or contemplated therein and transactions in the activities ordinary course of business consistent with past practice, (iii) none of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by Company, the rulesMid-Tier Company, regulations, resolutions and practices of the MHC or the Bank shall have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agents) or which would have a Material Adverse Effect, (iv) the representations and by New Jersey law warranties in Section 1 hereof are true and correct with the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full same force and effect as though expressly made at and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all as of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated herebyClosing Time, (Av) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Mid-Tier Company, the MHC and the Bank, enforceable in accordance Bank have complied with its terms, except as rights all agreements and satisfied all conditions on their part to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency performed or similar laws and the availability of equitable remedies)satisfied at or prior to Closing Time, (Bvi) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiaries.
(xvi) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action has been taken, or is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xvii) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission or any other governmental body, (vii) no order suspending any material aspect of the Conversion or the contribution to the Foundation or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application and (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(f) At the Closing Time, the Agents shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the Members’ Proxy Statement, fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(g) As of the date hereof, the Agents shall have received from McGladrey & Xxxxxx, LLP a letter dated such date, in form and substance satisfactory to the Agents, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act nor have proceedings therefor been initiated orand the Securities Act Regulations and the OTS Regulations, to the best of such counsel's knowledge, threatened by the Commission.
(xviii) No further approval, authorization, consent or other order of any public board or body is required in connection they are registered with the execution PCAOB and delivery of this Agreement, the issuance they are not in violation of the Securities and the Exchange Shares and the consummation auditor independence requirements of the Conversion Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and Reorganization, 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 supporting schedules included in the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and statistical data included therein, as to which no opinion need be rendered) complied covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agents and McGladrey & Xxxxxx, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act RegulationsRegulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the MHC, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions included in the Registration Statement or (B) during the period from September 30, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agents, and have found such amounts, percentages and financial information to be in agreement with the Conversion Regulationsrelevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxh) The Common Stock conforms At the Closing Time, the Agents shall have received from McGladrey & Xxxxxx, LLP a letter, dated as of Closing Time, to the description thereof contained effect that they reaffirm the statements made in the Prospectusletter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(i) At the Closing Time, the Securities shall have been approved for quotation on the Nasdaq Global Market upon notice of issuance.
(j) At the Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(k) At the Closing Time, counsel for the Agents shall have been furnished with such documents and opinions as they may require for the form purpose of certificate used enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the Common Stock is accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in due connection with the issuance and proper sale of the Securities as herein contemplated shall be satisfactory in form and complies with all applicable statutory requirementssubstance to the Agents and counsel for the Agents.
(xxil) There At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agents, are no legal so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental proceedings pending authority, and a banking moratorium shall not have been declared by either Federal, Virginia or threatened against New York authorities.
(m) The Securities shall have been qualified or affecting registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agents shall have reasonably requested and as agreed to by the Company, the MHC, the Bank or Mid-Tier Company and the Subsidiaries that are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company, the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not materialBank.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - Effect on Liquidation
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the Securities issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings Subscription and Community Offering or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxx Xxxxx, L.L.P.Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Silver, Xxxxxxxx & Taff, L.L.P., counsel for the Agent, providing that:as attached hereto as Exhibit B.
(i3) The Company In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Silver, Xxxxxxxx & Taff, L.L.P. shall each additionally state that nothing has been duly incorporated come to their attention that would lead them to believe that the Registration Statement (except for financial statements and is validly existing 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 corporation in good standing under material fact or omitted to state a material fact required to be stated therein or necessary to make the laws 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 Closing Time, or (if applicable) that the General Disclosure Package as of the State Applicable Time, included or includes an untrue statement of Delawarea 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.
(iic) The Company has full corporate power and authority At Closing Time referred to ownin Section 2 hereof, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank Mid-Tier Company, the MHC and the Subsidiaries considered as one enterpriseBank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(ivd) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and remain outstanding prior to the Closing Time other than the shares issued to the Bank to effectuate the Conversion and Reorganization, which shares will be canceled at the At Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company 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 non-assessable; the Exchange Shares, when issued in consideration for shares of the Bank's Common Stock pursuant to the Exchange Ratio, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The MHC is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would there shall not have a material adverse effect upon been, since the financial condition, results date hereof or since the respective dates as of operations or business affairs of the MHC.
(viii) The Bank has been at all times since _________________ and prior to the Closing Time duly organized, and which information is validly existing and in good standing under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described given in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a any material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(ix) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have been duly authorized, validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiaries have been duly incorporated and are validly existing as corporations change in good standing under the laws of the state of New Jersey, have full corporate power and authority to own, lease and operate their properties and to conduct their business as described in the Prospectus and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiaries considered as one enterprise; the activities of the Subsidiaries are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, include all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge, truthful, accurate and complete; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiv) The New Jersey Department of Banking has approved the New Jersey Application, and such approval remains in full force and effect and no action is pending or, to the best of such counsel's knowledge, threatened respecting the New Jersey Application; the New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of the New Jersey Department of Banking, and includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) 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 upon any property or assets of the Company, the MHC, the Bank or any of the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Subsidiaries 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 Bank or any of the Subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Subsidiaries considered as one enterprise and (C) will not result in any violation chief financial or chief accounting officer of the provisions Company, of the certificate Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or articles the Bank from the latest date as of incorporation, charter or bylaws which the financial condition of the Company, the MHCMid-Tier Company, the Bank MHC or the Subsidiaries.
Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (xviiii) The Prospectus has been duly authorized by neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the OTS for final use pursuant any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Conversion Regulations Agent) or which materially and no action has been takenadversely would affect the business, financial condition or is pending orresults of operations of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to the best of such counsel's knowledgebe performed or satisfied at or prior to Closing Time, is threatened, by the OTS to revoke such authorization.
(xviivi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act nor and no proceedings for that purpose have proceedings therefor been initiated oror threatened by the Commission and (vii) no order suspending the Subscription and Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the best effect that (i) they have reviewed the contents of such counsel's knowledge, threatened by the Commission.
(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 Securities and the Exchange Shares and the consummation of the Conversion and Reorganization, 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 effectiveand the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (other than iii) based on each of their knowledge, the financial statementsstatements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus.
(f) As of the date hereof, appraisal the Agent shall have received from ParenteBeard LLC a letter dated such date, in form and statistical data substance satisfactory to the Agent, to the effect that: (i) for the two-year period ended September 30, 2010, they were the independent public accountants with respect to the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) based upon limited procedures as agreed upon by the Agent and ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included therein, as to which no opinion need be rendered) complied in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations, Regulations and the Conversion Regulations.
(xx) The Common Stock conforms to OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Subsidiaries that are required, individually or in the aggregate, to be disclosed audited consolidated financial statements included in the Registration Statement and the Prospectus, other than those disclosed therein, (B) the amounts of net interest income and all pending legal net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in consolidated financial statements as of and for the dates and periods presented under such captions or governmental proceedings to which such amounts were not determined on a basis substantially consistent with that used in determining the Company, corresponding amounts in the MHC, the Bank or any of the Subsidiaries is a party or to which any of their property is subject which are not described audited financial statements included in the Registration Statement, including ordinary routine litigation incidental (C) at a specified date not more than five (5) business days prior to the businessdate of this Agreement, are, considered there has been any increase in the aggregateconsolidated long term or short term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from September 30, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, 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 Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iii) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (ii) above, they have carried out certain specified procedures, not materialconstituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(xxiig) The information At Closing Time, the Agent shall have received from ParenteBeard LLC a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the Prospectus describing letter furnished pursuant to subsection (f) of this Section, except that the liquidation account under specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the captions "The Conversion Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(i) At Closing Time, counsel for the Agent shall have been furnished with such documents and Reorganization - Liquidation Rights" opinions as they may require for the purpose of enabling them to pass upon the issuance and "- Effects sale of Conversion the Securities and Reorganization - Effect Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(j) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on Liquidationeither the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Pennsylvania or New York authorities.
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