Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D. (2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. (4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package). (5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law. (c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations;
Appears in 2 contracts
Samples: Agency Agreement (Atlantic Coast Federal Corp), Agency Agreement (Atlantic Coast Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and are subject, to the occurrence of extent not waived in writing by the Closing and the Conversion are subject Agent, to the condition that all representations and warranties of the Primary GB Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary GB Parties shall have performed performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) At the Closing Date, the GB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve and the Commission or any other government authority.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application shall have been approved by the OTSFederal Reserve and, and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary GB Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary GB Parties, threatened by the OTSFederal Reserve, the Commission Commission, or any other governmental bodyauthority. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Lxxx Xxxxxx, P.C. and/or local counsel acceptable to the AgentPC, in form and substance satisfactory to the Agent and counsel for the Agent Agent, to the effect as attached hereto as Exhibit D.A; and
(2) The In addition, such counsel shall state in a separate letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and Statement, the Prospectus, Lusethe Conversion Application, Gormanand the Holding Company Application, Xxxxxxxx & Xxxxxx, P.C. they participated in conferences with certain officers of of, the independent registered public accountants for, and other representatives of of, the Primary GB Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which conferences the contents of the Registration Statement and Statement, the Prospectus Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statements and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting while such counsel have not confirmed the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently accuracy or completeness of or otherwise verified the accuracy, completeness or fairness of the statements factual information contained in the Registration Statement and Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statements, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the basis of the foregoingGB Parties), nothing has come to the their attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. would lead them to believe that the Registration Statement at Statement, the time it was declared effective by Prospectus, Conversion Applications, the Commission Holding Company Application or the Proxy Statements, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any to which no view need be rendered) contain an untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)misleading.
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) (id) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPBKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that Xxxxx Xxxxxxx BKD, LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, Act and the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in the audited consolidated opinion of BKD, LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements of the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements prepared by the GB Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the GB Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, accruing troubled debt restructured loans, or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the GB Parties, which are subject to the internal controls of the accounting system of the GB Parties and other data prepared by the GB Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the GB Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the GB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions on their part contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by GBI, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Federal Reserve, the Commission, or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve in approving the Applications or to enjoin the Conversion.
(h) At the Closing Date, the Agent shall receive a letter from Kxxxxx & Company, Inc., dated as of the Closing Date:
(i) confirming that said firm is independent of the GB Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the GB Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the GB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(j) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the GB Parties independently, or the GB Parties taken as a whole, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein.
(k) At or prior to the Closing Date, the Agent shall receive (i) a copy of the letter from the Federal Reserve approving the Conversion Application, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-New York evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s and Commercial Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(m) Prior to and at the Closing date, none of the GB Parties will have received from the Federal Reserve, the OCC, the Department or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of a GB Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such GB Party, to the Agent as to the statements made therein.
(o) A blue sky memorandum from Lxxx Xxxxxx, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus, to GBI with a copy thereof addressed to Agent or upon which Lxxx Xxxxxx, P.C. shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(p) To the extent a sale or other disposition or transfer of shares of common stock or other securities of GBI is not otherwise prohibited by applicable law or regulation for the duration of the time period provided therein, each of the persons set forth on Exhibit B hereto shall deliver to the Agent a “lock-up” agreement, each in substantially the form of Exhibit C hereto, relating to the sales and certain other dispositions or transfers of shares of Common Stock or certain other securities of GBI on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 2 contracts
Samples: Agency Agreement (Generations Bancorp NY, Inc.), Agency Agreement (Generations Bancorp NY, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Melrose Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Melrose Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Melrose Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the Commissioner, the FRB and the FDIC), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Commissioner or the FDIC.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application Applications and the Holding Company Application shall have been approved by the OTSCommissioner, the FDIC and the FRB, as applicable, not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary Melrose Parties’ knowledge, threatened by the OTSCommission, the Commission Commissioner, the FDIC or any other governmental bodythe FRB.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentHolding Company and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.C.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5d) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Holding Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(ce) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Melrose Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Melrose Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Melrose Parties independently, or of the Melrose Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Melrose Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Melrose Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Melrose Parties, threatened by the Commissioner, the FDIC, the FRB or any state authority; and (viii) to the best knowledge of the Melrose Parties, no person has sought to obtain review of the final action of the Commissioner or the FDIC.
(f) None of the Melrose Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Melrose Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Melrose Parties shall have received from the Commissioner, the FDIC or the FRB any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Melrose Parties taken as a whole; (iii) none of the Melrose Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Melrose Parties, threatened against the any of the Melrose Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Melrose Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Melrose Parties.
(h) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPXxxxxxxxx, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx LLP Xxxxxxxxx is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the Mid-Tier Holding Company Bank as of December 31, 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principlesrequirements and related published rules and regulations of the Commissioner, the 1933 Act FDIC and the FRB and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Melrose Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Commissioner, the FDIC and the FRB and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Bank, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(i) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Xxxxxxxxx in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(j) At the Closing Date, the Holding Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Melrose Parties and is experienced and expert in the area of corporate appraisals within the meaning of Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letter from the Commissioner approving the Massachusetts Conversion Application and authorizing the use of the Prospectus; (ii) a copy of the letter from the FDIC not objecting to the FDIC Conversion Application; (iii) a copy of the letter from the FRB approving the Holding Company Application; (iv) confirmation that the Commission declared the Registration Statement effective; (v) a certificate from the Commissioner evidencing the good standing of the Bank; (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vii) a certificate from the FHLB-Boston evidencing the Bank’s membership therein; (viii) a certificate from the Maryland Department of Assessments & Taxation evidencing the good standing of the Holding Company and (ix) such other documents and certificates as the Agent may reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Melrose Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Melrose Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Melrose Party to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (Melrose Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and are subject, to the occurrence of extent not waived in writing by the Closing and the Conversion are subject Agent, to the condition that all representations and warranties of the Primary HF Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary HF Parties shall have performed performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) At the Closing Date, the HF Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve and the OCC or any other government authority.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Holding Company Application Applications shall have been approved by the OTSFederal Reserve and the OCC, and as applicable, as of the date of this Agreement and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary HF Parties, threatened by the Commission Federal Reserve, the OCC or any state other regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary HF Parties, threatened by the OTSFederal Reserve, the Commission OCC or any other governmental bodyregulatory authority. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit and upon which Agent’s counsel may rely for purposes of delivering its legal opinion (if any), of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the AgentPC, in form and substance satisfactory to the Agent and counsel for the Agent Agent, to the effect as attached hereto as Exhibit D.A.
(2) The In addition, such counsel shall state in a separate letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and Statement, the Prospectus, Luseand the Applications, Gorman, Xxxxxxxx & Xxxxxx, P.C. they participated in conferences with certain officers of and other representatives of the Primary Partiesof, counsel to the Agent, representatives of the independent public accountants for for, and other representatives of, the Primary Parties and representatives of the Agent HF Parties, at which conferences the contents of the Registration Statement Statement, the Prospectus and the Prospectus Applications and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting while such counsel have not confirmed the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently accuracy or completeness of or otherwise verified the accuracy, completeness or fairness of the statements factual information contained in the Registration Statement Statement, the Prospectus and Prospectusthe Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the basis of the foregoingHF Parties), nothing has come to the their attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. would lead them to believe that the Registration Statement at Statement, the time it was declared effective by the Commission and as Prospectus or any of the date of such letter Applications, or that any amendment or supplement thereto (other than the General Disclosure Package financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as of the Applicable Time, contained or contains any to which no view need be rendered) contain an untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)misleading.
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) (id) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPXxxxxx & Xxxxx, PLLC dated the date hereof and addressed to the Agent, such letter (i) confirming that Xxxxx Xxxxxxx LLP Xxxxxx & Xxxxx, PLLC is a firm of independent registered public accountants within the meaning of the 1933 Act, Act and the 1933 Act Regulations and the PCAOB RegulationsPCAOB, and stating in effect that in the audited consolidated opinion of Xxxxxx & Xxxxx, PLLC, the financial statements of the Mid-Tier Holding Company Bank included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements of the 1933 Act and the 1933 Act Regulationsrelated rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the HF Parties, a reading of the minutes of the meetings of the Boards of Directors of the HF Parties and committees thereof and consultations with officers of the HF Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans, foreclosed assets (including property acquired through formal foreclosure, in-substance foreclosure or by deed in lieu of foreclosure), or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the HF Parties, which are subject to the internal controls of the accounting system of the HF Parties and other data prepared by the HF Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the 1934 Act Closing Date, the Agent shall receive a letter from Xxxxxx & Xxxxx, PLLC dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the HF Parties, dated the Closing Date, to the effect that:
(1) they have examined the Registration Statement and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(2) there has not been, since the respective dates as of which information is given in the Registration Statement and the 1934 Act RegulationsProspectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(3) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(4) the HF Parties have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(5) no stop order has been issued or, to their knowledge, is threatened, by the OCC or any other governmental body;
(6) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Federal Reserve, the OCC or any other federal or state authority; and
(7) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve or the OCC in approving the Applications or to enjoin the Conversion.
(h) At the Closing Date, the Agent shall receive a letter from Xxxxxxx Financial Advisors, Inc., dated as of the Closing Date,
(1) confirming that said firm is independent of the HF Parties and is experienced and expert in the area of corporate appraisals,
(2) stating in effect that the Appraisal complies in all material respects with requirements of any applicable banking regulations, and
(3) further stating that its opinion of the aggregate pro forma market value of the HF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the HF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, or civil unrest, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(j) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the HF Parties independently, or the HF Parties taken as a whole, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein.
(k) At or prior to the Closing Date, the parties will have received (i) a copy of the letter from the Federal Reserve approving the Holding Company Application; (ii) a copy of the letter from the OCC approving the Conversion Application; (iii) a copy of the order from the Commission declaring the Registration Statement effective, if available; (iv) a certificate from the FHLB-Topeka evidencing the Bank’s membership therein; (v) a certificate from the Secretary of State of the State of Maryland evidencing the valid existence of the Company; (vi) a certified copy of each of the HF Parties’ Charter and Bylaws, as applicable; and (vii) any other document that Agent may reasonably request.
(l) At the Closing Date, the Shares shall have been approved for listing on the NASDAQ Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(1) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or in the over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(2) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(3) a 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, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing Date, none of the HF Parties will have received from the Federal Reserve or the OCC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(o) All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of any HF Party and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such HF Party to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Central Plains Bancshares, Inc.), Agency Agreement (Central Plains Bancshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and are subject, to the occurrence of extent not waived in writing by the Closing and the Conversion are subject Agent, to the condition that all representations and warranties of the Primary NB Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary NB Parties shall have performed performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) At the Closing Date, the NB Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OCC, the Federal Reserve and the Commission or any other government authority.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application shall have been approved by the OTSOCC and Federal Reserve, and respectively, and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary NB Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary NB Parties, threatened by the OTSOCC, the Commission Federal Reserve, the Commission, or any other governmental bodyauthority. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the AgentPC, in form and substance satisfactory to the Agent and counsel for the Agent Agent, to the effect as attached hereto as Exhibit D.B:
(2) The In addition, such counsel shall state in a separate letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and Statement, the Prospectus, Lusethe Conversion Application, Gormanand the Holding Company Application, Xxxxxxxx & Xxxxxx, P.C. they participated in conferences with certain officers of of, the independent public and internal accountants for, and other representatives of of, the Primary NB Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which conferences the contents of the Registration Statement, the Prospectus, the Conversion Application, the Holding Company Application, the Proxy Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting while such counsel have not confirmed the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently accuracy or completeness of or otherwise verified the accuracy, completeness or fairness of the statements factual information contained in the Registration Statement and Statement, the Prospectus, the Conversion Application, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the basis of the foregoingNB Parties), nothing has come to the their attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. would lead them to believe that the Registration Statement at Statement, the time it was declared effective by Prospectus, the Commission Conversion Application, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any to which no view need be rendered) contain an untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)misleading.
(3d) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance Prior to the effect that during the preparation mailing of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent PC relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx, PC permits the Agent to rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(c) (ie) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPBKD, LLP dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the NB Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the NB Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the OCC, the Federal Reserve, the Commission, or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan or to enjoin the Conversion.
(i) At the Closing Date, the Agent shall receive a letter from Xxxxxx & Company, Inc., dated as of the Closing Date,
(i) confirming that Xxxxx Xxxxxxx LLP said firm is a firm of independent registered public accountants within the meaning of the 1933 Act, NB Parties and is experienced and expert in the 1933 Act Regulations and the PCAOB Regulations, and area of corporate appraisals,
(ii) stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form Appraisal complies in all material respects with generally accepted accounting principlesthe applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the NB Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the NB Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(k) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the NB Parties independently, or the NB Parties taken as a whole, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein.
(l) At or prior to the Closing Date, the 1933 Act Agent shall receive (i) a copy of the Conversion Application and a copy of the 1933 Act Regulationsletters from the OCC approving the Conversion Application, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Indianapolis evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(m) Subsequent to the 1934 Act date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the 1934 Act Regulations;Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing date, none of the NB Parties will have received from the Federal Reserve, the OCC or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(o) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Melrose Bancorp, Inc.), Agency Agreement (New Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Eastern Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Eastern Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Eastern Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the BHCA, the Massachusetts Regulations (except to the extent waived or otherwise approved by the FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB, the Division or any other applicable regulator.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Holding Company Application Applications shall have been approved by the OTSFRB and the Division not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Eastern Parties, threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary Eastern Parties’ knowledge, threatened by the OTSCommission, the Commission FRB, the Division, or any other governmental bodyregulatory authority.
(bc) At the Closing Date, the Agent and X.X. Xxxxxx shall have received:
(1) The opinionreceived the favorable opinion and negative assurance statement, dated as of the Closing Date and addressed to the Agent and X.X. Xxxxxx and for their benefit, of Xxxxxx, counsel for the Eastern Parties, in form and substance as attached hereto as Exhibit A.
(d) At the Closing Date, the Agent and X.X. Xxxxxx shall have received the favorable opinion and negative assurance statement, dated as of Xxxx the Closing Date and addressed to the Agent and X.X. Xxxxxx Xxxxxxxx & Xxxxxxand for their benefit, P.C. and/or local of Xxxxxxx Xxxxxxx, counsel acceptable to for the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.X.X. Xxxxxx.
(2e) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance Prior to the effect that during the preparation mailing of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel a blue sky memorandum from Xxxxxxx Xxxxxxx relating to the Offering, including the Agent’s participation therein, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed shall have been furnished to the Holding Company and with a copy thereof addressed to the Agent relating to or upon which Xxxxxxx Xxxxxxx shall state the Offering and the Exchange, including Agent’s participation thereinAgent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent and X.X. Xxxxxx shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Eastern Parties in form and substance reasonably satisfactory to the Agent and X.X. Xxxxxx, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Eastern Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Eastern Parties independently, or of the Eastern Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Eastern Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Eastern Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Eastern Parties, threatened by the FRB, the Division, or any other regulatory authority; and (viii) to the best knowledge of the Eastern Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(g) None of the Eastern Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, except that individually or in the aggregate would not have a Material Adverse Effect, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Eastern Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Eastern Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Eastern Parties taken as a whole; (iii) none of the Eastern Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Eastern Parties, threatened against the any of the Eastern Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Eastern Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Eastern Parties.
(i) Concurrently with the execution of this Agreement, the Agent and X.X. Xxxxxx shall receive have received (i) a letter from Xxxxx Xxxxxxx Ernst & Young LLP, dated as of the date hereof and addressed to the AgentAgent and X.X. Xxxxxx, such letter confirming that Xxxxx Xxxxxxx Ernst & Young LLP is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and in form and substance reasonably satisfactory to the Agent and X.X. Xxxxxx, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in each of the Registration Statement and the Prospectus; provided that the “cut-off date” for purposes of such letter shall not be more than three business days prior to the date of this Agreement; and (ii) a certificate of the chief financial officer of the MHC, dated as of the date hereof and addressed to the Agent and X.X. Xxxxxx, with respect to certain financial data contained in the Registration Statement and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent and X.X. Xxxxxx.
(j) At the Closing Date, the Agent and X.X. Xxxxxx shall have received (i) a letter dated the Closing Date, addressed to the Agent and X.X. Xxxxxx, confirming the statements made by Ernst & Young LLP in the letter delivered by it pursuant to the immediately preceding paragraph; provided that the “cut-off date” for purposes of such letter shall not be more than three business days prior to the Closing Date and (ii) a certificate of the chief financial officer of the MHC, dated as of the date hereof and addressed to the Agent and X.X. Xxxxxx, confirming the statements made in the certificate delivered by such officer pursuant to the immediately preceding paragraph.
(k) At the Closing Date, the Holding Company shall have received a letter from RP Financial, LC, dated the Closing Date (i) confirming that said firm is independent of the Eastern Parties and is experienced and expert in the area of corporate appraisals within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Massachusetts Conversion Regulations, and (ii) stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form Appraisal prepared by such firm complies in all material respects with generally accepted accounting principles209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the 1933 Act Agent shall have received: (i) a copy of the letter from the FRB approving the Holding Company Application; (ii) a copy of a letter from the Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission declared the Registration Statement effective; (iv) certificates from the Secretary of State of the Commonwealth of Massachusetts evidencing the valid existence and good standing of the MHC, the Holding Company and EIG; (v) a certificate from the Division evidencing the good standing of the Bank; (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vii) a certificate from the FHLBB evidencing the Bank’s membership therein; and (viii) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or The Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1933 Act RegulationsProspectus.
(n) At or prior to the Closing Date, the Holding Company shall have filed a Form 8-A with the Commission registering the Shares under Section 12(b) of the Exchange Act.
(o) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the 1934 Act purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the 1934 Act Regulations;occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Eastern Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Eastern Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Eastern Party to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Eastern Bankshares, Inc.), Agency Agreement (Eastern Bankshares, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and are subject, to the occurrence of extent not waived in writing by the Closing and the Conversion are subject Agent, to the condition that all representations and warranties of the Primary Eagle Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the condition that the Primary Eagle Parties shall have performed performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) At the Closing Date, the Eagle Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Division, the FDIC, the FRB and the SEC or any other government authority.
(b) The Registration Statement shall have been declared effective by the Commission, SEC and the Conversion Application and the Holding Company Application shall have been approved by the OTSDivision, the FDIC and FRB, as applicable, and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Eagle Parties, threatened by the Commission SEC or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Eagle Parties, threatened by the OTSDivision, the Commission FDIC, the FRB, the SEC, or any other governmental bodyauthority. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Lxxx Xxxxxx, P.C. and/or local counsel acceptable to the AgentPC, in form and substance satisfactory to the Agent and counsel for the Agent Agent, to the effect as attached hereto as Exhibit D.A.
(2d) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance Prior to the effect that during the preparation mailing of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & a blue sky memorandum from Lxxx Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent PC relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished to the Company with a copy thereof addressed to Agent or upon which Lxxx Xxxxxx, PC permits the Agent to rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(c) (ie) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPeach of BKD, LLP and Mxxxxxx Xxxxxx & Company, P.C. dated the date hereof and addressed to the Agent in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in auditors’ “comfort letters” to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus.
(f) At the Closing Date, the Agent shall receive a letter from each of BKD, LLP and Mxxxxxx Xxxxxx & Company, P.C. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (e) of this Section 11, the specified date referred to in such letter, through which certain procedures described in such letter have been performed, shall be a date not be more than three business days prior to the Closing Date.
(g) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(h) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Eagle Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the Eagle Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the SEC or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Division, the FDIC, the FRB, the SEC, or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Division or the FDIC in approving the Plan or to enjoin the Conversion.
(i) At the Closing Date, the Agent shall receive a letter from Kxxxxx & Company, Inc., dated as of the Closing Date,
(i) confirming that Xxxxx Xxxxxxx LLP said firm is a firm of independent registered public accountants within the meaning of the 1933 Act, Eagle Parties and is experienced and expert in the 1933 Act Regulations and the PCAOB Regulations, and area of corporate appraisals,
(ii) stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form Appraisal complies in all material respects with generally accepted accounting principlesthe applicable requirements of the Conversion Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Eagle Parties expressed in the Appraisal as most recently updated, remains in effect.
(j) None of the Eagle Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(k) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the Eagle Parties independently, or the Eagle Parties taken as a whole, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein.
(l) At or prior to the Closing Date, the 1933 Act Agent shall receive (i) a copy of the Conversion Application and a copy of the letters from the Division and the 1933 Act RegulationsFDIC approving the Conversion Application, (ii) a copy of the order from the SEC declaring the Registration Statement effective, (iii) a copy of the letter from the FRB approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(m) Subsequent to the 1934 Act date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or in the over-the-counter market, or quotations halted generally on the NASDAQ Stock Market (“NASDAQ”), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the SEC or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof, the effect of which, in the reasonable judgment of the Agent, is so material and adverse as to make it impracticable to market the 1934 Act Regulations;Shares or to enforce contracts, including subscriptions or purchase orders, for the sale of the Shares.
(n) Prior to and at the Closing date, none of the Eagle Parties will have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent).
(o) FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(p) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Eagle Financial Bancorp, Inc.), Agency Agreement (Eagle Financial Bancorp, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary OBA Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary OBA Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the OBA Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary OBA Parties’ knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.C.
(2d) The letter of Xxxx Xxxxxx Xxxxxxxx & XxxxxxAt the Closing Date, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which shall have received the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLP, special counsel for Stifelthe Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package attached hereto as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).Exhibit D.
(5e) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the OBA Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the OBA Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the OBA Parties independently, or of the OBA Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the OBA Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the OBA Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the OBA Parties, threatened by the OTS or any state authority; and (viii) to the best knowledge of the OBA Parties, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(g) None of the OBA Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the OBA Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the OBA Parties shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the OBA Parties taken as a whole; (iii) none of the OBA Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the OBA Parties, threatened against the any of the OBA Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the OBA Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the OBA Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx Xxxxxx Company LLP, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx Xxxxxx Company LLP is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidMHC as of June 30, 2009 and 2008, and for each of the years in the three-Tier Holding Company year period ended June 30, 2009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the OBA Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings of the MHC, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the net assets of the MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the MHC, which are subject to the internal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Xxxxx Xxxxxx Company LLP in the letter delivered by it pursuant to subsection (g) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the OBA Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) certificates from the OTS evidencing the valid existence of the Bank, the MHC and OBA Bancorp; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Atlanta evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the OBA Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the OBA Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such OBA Party to the Agent as to the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (OBA Financial Services, Inc.), Agency Agreement (OBA Financial Services, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Reorganization are subject to the condition that all representations and warranties of the Primary Greenville Federal Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct, the condition that the Primary Greenville Federal Parties shall have performed performed, in all material respects, all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) At the Closing Date, the Greenville Federal Parties shall have conducted the Reorganization in all material respects in accordance with the Plan, the MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the OTS and the SEC or any other authority government.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Conversion Application MHC Notice and the Holding Company Application shall have been approved by the OTS, OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Greenville Federal Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Greenville Federal Parties, threatened by the OTS, the Commission Commission, or any other governmental body. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by Greenville Federal Financial Corporation.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the AgentVSSP, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & XxxxxxAgent, P.C. in form and substance to the effect that:
(i) Greenville Federal Financial Corporation is a corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Bank is a validly existing federally chartered mutual savings and loan association, and upon consummation of the Reorganization, the Bank will become a validly existing federally chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the OTS (or valid waivers granted it by the OTS from such rules and regulations); all of the capital stock of the Bank to be outstanding upon completion of the Reorganization will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by Greenville Federal Financial Corporation, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member in good standing of the Federal Home Loan Bank of Cincinnati. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(iv) Greenville Federal MHC has been duly organized and is validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization and the issuance of the Shares immediately upon completion of the Reorganization, under the terms of the approval order of the OTS, in an amount as described in the Prospectus, (a) the authorized, issued and outstanding capital stock of Greenville Federal Financial Corporation will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of Greenville Federal Financial Corporation); (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by Greenville Federal Financial Corporation pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter or bylaws of Greenville Federal Financial Corporation, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from Greenville Federal Financial Corporation to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Greenville Federal Parties have full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Greenville Federal Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Greenville Federal Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that during (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other laws (including the preparation laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally or the rights of creditors of savings associations or financial institutions, the accounts of which are insured by the FDIC, or their holding companies, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) Pursuant to the MHC Regulations, the Plan has been duly approved by the required vote of the Bank's members, based upon the certificate of the inspector of election, and duly adopted by the required vote of the directors of Greenville Federal Financial Corporation and the Bank.
(viii) The Plan complies in all material respects with the MHC Regulations; the MHC Notice and the Holding Company Application have been approved by the OTS, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, Commission or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Reorganization, except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the MHC Notice, the Prospectus or the Holding Company Application.
(ix) The Registration Statement has become effective under the 1933 Act, and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted by the Commission and to such counsel's Actual Knowledge, no such proceedings have been threatened by the Commission.
(x) The terms and provisions of the Shares conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, Luseand the forms of certificates proposed to be used to evidence the Shares are in due and proper form in compliance with applicable laws.
(xi) At the time the MHC Notice, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and including the Prospectus and related matters were discussed Members' Proxy Statement contained therein, was approved by the OTS, the MHC Notice, including the Prospectus and has considered Members' Proxy Statement contained therein, as amended or supplemented, complied as to form in all material respects with the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness requirements of the statements contained in MHC Regulations (other than the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and financial tables or other financial and statistical data includedincluded therein and the appraisal valuation and the business plan, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Packageas to which counsel need express no opinion).
(3xii) The favorable opinion, dated At the time that the Registration Statement became effective and as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the ProspectusStatement, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and including the Prospectus and related matters were discussed and has considered (as amended or supplemented) (other than the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and financial tables or other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company included therein and the Agent relating to the Offering appraisal valuation and the Exchangebusiness plan, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptionsas to which counsel need express no opinion), qualifications or the registration of the Common Stock under applicable state securities law.
(c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply complied as to form in all material respects with generally accepted accounting principles, the requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xiii) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xiv) The information in the Prospectus under the captions "Summary -- The reorganization and the 1934 Act stock offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Plans Regarding Dividends," "Management," "Supervision and Regulation," "Taxation," "Our Reorganization and Stock Offering," "Restrictions on Acquisition of Greenville Federal Financial Corporation and Greenville Federal" and "Description of Capital Stock of Greenville Federal Financial Corporation," to the 1934 Act Regulations;extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown.
Appears in 2 contracts
Samples: Agency Agreement (Greenville Federal Financial CORP), Agency Agreement (Greenville Federal Financial CORP)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Territorial Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Territorial Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Territorial Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary Territorial Parties’ knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.C.
(2d) The letter of Xxxx Xxxxxx Xxxxxxxx & XxxxxxAt the Closing Date, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which shall have received the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLP, special counsel for Stifelthe Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package attached hereto as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).Exhibit D.
(5e) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Territorial Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Territorial Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Territorial Parties independently, or of the Territorial Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Territorial Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Territorial Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Territorial Parties, threatened by the OTS or any state authority; and (viii) to the best knowledge of the Territorial Parties, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(g) None of the Territorial Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Territorial Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Territorial Parties shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Territorial Parties taken as a whole; (iii) none of the Territorial Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Territorial Parties, threatened against the any of the Territorial Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Territorial Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or Blue Sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Territorial Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx KPMG LLP, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx KPMG LLP is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidBank as of December 31, 2007, 2006 and 2005, and for each of the years in the three-Tier Holding Company year period ended December 31, 2007, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Territorial Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings of the MHC, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the net assets of the MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the MHC, which are subject to the internal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by KPMG LLP in the letter delivered by it pursuant to subsection (g) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Company shall receive a letter from FinPro, Inc., dated the Closing Date (i) confirming that said firm is independent of the Territorial Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) certificates from the OTS evidencing the valid existence of the Bank, the MHC and Territorial Savings Group; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Seattle evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a material decline in the price of equity or debt securities if the effect of such decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Territorial Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Territorial Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Territorial Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary OBA Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary OBA Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the OBA Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary OBA Parties’ knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.C.
(2d) The letter of Xxxx Xxxxxx Xxxxxxxx & XxxxxxAt the Closing Date, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which shall have received the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLP, special counsel for Stifelthe Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package attached hereto as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).Exhibit D.
(5e) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the OBA Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the OBA Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the OBA Parties independently, or of the OBA Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the OBA Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the OBA Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the OBA Parties, threatened by the OTS or any state authority; and (viii) to the best knowledge of the OBA Parties, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(g) None of the OBA Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the OBA Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the OBA Parties shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the OBA Parties taken as a whole; (iii) none of the OBA Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the OBA Parties, threatened against the any of the OBA Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the OBA Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the OBA Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPParenteBeard LLC, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx LLP ParenteBeard LLC is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidMHC as of June 30, 2009 and 2008, and for each of the years in the three-Tier Holding Company year period ended June 30, 2009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the OBA Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Bank, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the MHC, which are subject to the internal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by ParenteBeard LLC in the letter delivered by it pursuant to subsection (g) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the OBA Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) certificates from the OTS evidencing the valid existence of the Bank, the MHC and OBA Bancorp; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Atlanta evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the OBA Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the OBA Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such OBA Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Territorial Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Territorial Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Territorial Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary Territorial Parties’ knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.C.
(2d) The letter of Xxxx Xxxxxx Xxxxxxxx & XxxxxxAt the Closing Date, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which shall have received the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLP, special counsel for Stifelthe Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package attached hereto as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).Exhibit D.
(5e) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Territorial Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Territorial Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Territorial Parties independently, or of the Territorial Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Territorial Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Territorial Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Territorial Parties, threatened by the OTS or any state authority; and (viii) to the best knowledge of the Territorial Parties, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(g) None of the Territorial Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Territorial Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Territorial Parties shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Territorial Parties taken as a whole; (iii) none of the Territorial Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Territorial Parties, threatened against the any of the Territorial Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Territorial Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Territorial Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx KPMG LLP, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx KPMG LLP is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidMHC as of December 31, 2008 and 2007, and for each of the years in the three-Tier Holding Company year period ended December 31, 2008, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Territorial Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings of the MHC, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the net assets of the MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the MHC, which are subject to the internal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by KPMG LLP in the letter delivered by it pursuant to subsection (g) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Company shall receive a letter from FinPro, Inc., dated the Closing Date (i) confirming that said firm is independent of the Territorial Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) certificates from the OTS evidencing the valid existence of the Bank, the MHC and Territorial Savings Group; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Seattle evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Territorial Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Territorial Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Territorial Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, or to the knowledge of the Primary PartiesCompany or the Bank, threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company’s and the Primary PartiesBank’s knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5d) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(ce) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Company and the Bank in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank independently, or of the Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Company and the Bank complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Company and the Bank, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Company and the Bank, threatened by the OTS or any state authority; and (viii) to the knowledge of the Company and the Bank, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(f) Neither the Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Company and the Bank considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) neither the Company nor the Bank shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; (iii) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Company and the Bank, threatened against any of the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company and the Bank.
(h) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx McGladrey & Xxxxxx, LLP, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx McGladrey & Xxxxxx, LLP is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidBank as of December 31, 2008 and 2007, and for each of the years in the three-Tier Holding Company year period ended December 31, 2008, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in non-interest expense or any decrease in dtotal interest income, net income, non-interest income, provision for loan loss, or net interest income after provision for loan losses as compared to the prior year period; or (C) there was any increase in borrowings, non-performing loans, non-performing assets, or special mention loans, or any decrease in loan loss allowance, total assets, or equity, at the date specified in such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(i) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by McGladrey & Xxxxxx, LLP in the letter delivered by it pursuant to subsection (h) of this Section 8, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(j) At the Closing Date, the Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) a certificate from the OTS evidencing the valid existence of the Bank; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Dallas evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of ------------------------------------- hereunder, as to the Agent hereunder and the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company's, the Primary PartiesMHC's or the Bank's knowledge, threatened by the OTSCommission, the Commission OTS or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLPXxxx Xxxxxx, special counsel for Stifelthe Company, with respect to such matters as the Agent may reasonably require; such opinion may relyMHC and the Bank, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the preparation laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives . All of the Primary Parties, counsel to the Primary Parties, representatives outstanding capital stock of the independent public accountants for the Primary Parties Company is duly authorized and representatives validly issued, and upon payment therefor, will be fully paid and non-assessable.
(ii) The Bank has been organized and is a validly existing federal savings bank in capital stock form of the Agent at which the contents of the Registration Statement organization, authorized to conduct its business and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained own its property as described in the Registration Statement and Prospectus, on the basis . All of the foregoingoutstanding capital stock of the Bank will be authorized and upon payment therefor, nothing will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The MHC has come been organized and is a validly existing federal mutual holding company authorized to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The Bank is a member of the FHLB-New York. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion--Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(v) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Company no shares of Common Stock have been issued prior to the Closing Date; at the time it was declared effective of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Commission and as Company pursuant to the Plan against payment of the date of such letter or that consideration calculated as set forth in the General Disclosure Package as Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Applicable Time, contained or contains any untrue statement of a material fact or omitted Shares is not subject to state any material fact required to be stated therein or necessary to make preemptive rights and the statements therein in light terms and provisions of the circumstances under which they were made not misleading Shares conform in all material respects to the description thereof contained in the Prospectus. Upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(it being understood that counsel need express no comment vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been validly authorized by all necessary action on the part of the Company, the MHC, and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or opinion other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to financial statementsthe indemnification and/or contribution provisions contained herein, notes including, without limitation, the provisions of Section 23A and 23B of the Federal Reserve Act, and except that no opinion need to financial statements, schedules and other financial and statistical data included, be expressed as to the effect or statistical availability of equitable remedies or appraisal methodology employed, injunctive relief (regardless of whether such enforceability is considered in the Registration Statement, a proceeding in equity or Prospectus or General Disclosure Packageat law).
(5vii) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & XxxxxxThe Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, P.C. addressed and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been adopted by the Holding required vote of the directors of the Company, the MHC and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration stockholders of the Common Stock under applicable state securities lawBank.
(cix) (i) Concurrently Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning issuance of the 1933 ActShares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act Regulations and no stop order suspending the PCAOB Regulationseffectiveness has been issued under the 1933 Act or proceedings therefor initiated or, and stating in effect that to such counsel's Actual Knowledge, threatened by the audited consolidated financial statements of Commission.
(xi) At the Mid-Tier Holding Company included in time the Conversion Application, including the Prospectus comply contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with generally accepted the requirements of the Conversion Regulations, the HOLA and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and accounting principlesinformation included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the 1934 Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the 1934 Act Regulations;form of certificate used to evidence the Shares is in proper form.
(xiv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC or the Bank is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvi) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the Plan and the HOLA and regulations thereunder, and the Plan complies in all material respects with all applicable Delaware and federal laws, rules and regulations including, but not limited to, the Conversion Regulations (except where a written waiver has been received); no order has been issued by the OTS, the Commission or any state authority to suspend the Offerings or the use of the Prospectus, and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OTS or the Commission or any state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application or the Prospectus.
(xvii) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have obtained all material federal and Delaware licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have a material adverse affect on the business or operations of the Bank, the MHC and the Company, taken as a whole.
(xviii) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of its articles of incorporation, bylaws, or charter, as applicable, or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Company, the MHC nor the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the occurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC or the Bank is subject (other than the establishment of a liquidation account), and such action will not result in any violation of the provisions of the articles of incorporation, bylaws or charter, as applicable, of the Company, the MHC or the Bank, or any applicable federal or Delaware law, act, regulation (except that no opinion need be rendered with respect to the securities or blue sky laws of various jurisdictions or the rules and regulations of the NASD and/or the Nasdaq National Market) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the General Corporation Law ("GCL") of the State of Delaware. The Bank's and the MHC's charter and bylaws comply in all material respects with the HOLA and the rules and regulations of the OTS.
(xx) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xxi) The information in the Prospectus under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of Finger Lakes Bancorp" and "Description of Capital Stock of the Bank," and "Description of Capital Stock of Finger Lakes Bancorp" to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Conversion process under the caption "The Conversion" in the Prospectus has been reviewed by such counsel and is in all material respects correct. The discussion of statutes or regulations described or referred to in the Prospectus are accurate summaries and fairly present the information required to be shown. The information under the caption "Taxation" has been reviewed by such counsel and constitutes a correct summary of the opinions rendered by Xxxx Xxxxxx and KPMG to the Company, the MHC and the Bank with respect to such matters. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or directors of the Company, the MHC and the Bank and
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Association herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Association shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, Commission and the Conversion Application and the Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company's or the Primary PartiesAssociation's knowledge, threatened by the Commission, the OTS, the Commission FDIC, or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLPElias, Matz, Xxxxxxx & Xxxxxxx, L.L.P., special counsel for Stifelthe Company and the Association, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the preparation laws of the state of Louisiana.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(iii) The Association has been duly organized and is a validly existing Louisiana chartered savings association in capital stock form of organization, Xxxxxxxxxx Xxxxxxxx LLP participated duly authorized to conduct its business and own its property as described in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered Prospectus. All of the matters required to outstanding capital stock of the Association upon completion of the Conversion will be stated therein and the statements contained therein duly authorized and, although upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(without limiting iv) The Association has no subsidiaries.
(v) The Association is a member of the opinions provided FHLB-Dallas. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the captions "The Conversion and Reorganization-Effect on Liquidation Rights" and "- Liquidation Rights," to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurately described in all material respects.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and, no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to Section 10(b)(3))the Offering will have been duly and validly authorized for issuance, Xxxxxxxxxx Xxxxxxxx LLP has not independently verified and when issued and delivered by the accuracy, completeness or fairness Company pursuant to the Plan against payment of the statements contained consideration calculated as set forth in the Registration Statement Plan and Prospectus, on will be duly and validly issued and fully paid and non-assessable; the basis issuance of the foregoing, nothing has come Shares is not subject to preemptive rights and the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission terms and as provisions of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form Shares conform in all material respects with generally accepted accounting principlesto the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the 1933 Act and issuance of the 1933 Act RegulationsShares, and good title to the 1934 Act and Shares will be transferred by the 1934 Act Regulations;Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
Appears in 1 contract
Samples: Agency Agreement (Gs Financial Corp)
Conditions to the Agent’s Obligations. The obligations obligation of the Agent hereunder to consummate the transactions contemplated by this Agreement on the Initial Closing Date is subject to (i) the accuracy and correctness on the occurrence Initial Closing Date of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein other parties hereto contained areherein, at (ii) the accuracy and as correctness on the Initial Closing Date of the commencement representations and warranties of the Offering other parties hereto contained in any other Operative Agreement or certificate delivered pursuant hereto or thereto, (iii) the performance by the other parties hereto of their respective agreements contained herein and at and as of in the other Operative Agreements, in each case to be performed by them on or prior to the Initial Closing Date, true and correct(iv) the satisfaction, or waiver by the condition that the Primary Parties shall have performed Agent, of all of their obligations hereunder to be performed the following conditions on or before such dates and prior to the following further conditionsInitial Closing Date:
(a) The Registration Statement Each of the Operative Agreements to be entered into on the Initial Closing Date shall have been declared effective duly authorized, executed and delivered by the Commissionparties thereto, other than the Conversion Application Agent, and shall be in full force and effect, and no Default or Event of Default shall exist thereunder (both before and after giving effect to the transactions contemplated by the Operative Agreements), and the Holding Company Application Agent shall have received a fully executed copy of each of the Operative Agreements (including the Notes). The Operative Agreements (or memoranda thereof), any supplements thereto and any financing statements and fixture filings in connection therewith required under the Uniform Commercial Code shall have been approved by filed or shall be promptly filed, if necessary, in such manner as to enable the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, Lessor's counsel to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, render its opinion referred to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.in Section 6.2(f) hereof;
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as satisfaction of each of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, conditions set forth in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)Sections 6.1(b), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)c), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy(e) and (f) and Sections 6.2(d), completeness or fairness of the statements contained in the Registration Statement (e) and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5f) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.hereof; and
(c) (i) Concurrently with In the execution reasonable opinion of this Agreementthe Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not violate any material Legal Requirements and do not and will not subject the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations;any materially adverse regulatory prohibitions or constraints.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of hereunder, as to the Agent hereunder and the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company, the MHC, the Mid-Tier Holding Company and the Association shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company, the MHC, the Mid-Tier Holding Company and the Association shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company's, the Primary PartiesMHC's or the Association's knowledge, threatened by the OTSCommission, the Commission OTS or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLPEliax Xxxx, xxecial counsel for Stifelthe Company, with respect to such matters as the Agent may reasonably require; such opinion may relyMHC, as to matters of factthe Mid-Tier Holding Company and the Association, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the preparation laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives . All of the Primary Parties, counsel to the Primary Parties, representatives outstanding capital stock of the independent public accountants for the Primary Parties Company is duly authorized and representatives validly issued, and upon payment therefor, will be fully paid and non-assessable.
(ii) The Association has been organized and is a validly existing federal savings association in capital stock form of the Agent at which the contents of the Registration Statement organization, authorized to conduct its business and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained own its property as described in the Registration Statement and Prospectus, on the basis . All of the foregoingoutstanding capital stock of the Association will be authorized and upon payment therefor, nothing will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The Mid-Tier Holding Company has come been organized as a, and is a validly existing, federal corporation, authorized to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The MHC has been organized and is a validly existing federal mutual holding company authorized to conduct its business and own its property as described in the Registration Statement and Prospectus.
(v) The Association is a member of the FHLB-Atlanta. The deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion--Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Company no shares of Common Stock have been issued prior to the Closing Date; at the time it was declared effective of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Commission and as Company pursuant to the Plan against payment of the date of such letter or that consideration calculated as set forth in the General Disclosure Package as Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Applicable Time, contained or contains any untrue statement of a material fact or omitted Shares is not subject to state any material fact required to be stated therein or necessary to make preemptive rights and the statements therein in light terms and provisions of the circumstances under which they were made not misleading Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(it being understood that counsel need express no comment vii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been validly authorized by all necessary action on the part of the Company, the Mid-Tier Holding Company, the MHC, and the Association; and this Agreement is a valid and binding obligation of the Company, the Mid-Tier Holding Company, the MHC and the Association, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or opinion other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to financial statementsthe indemnification and/or contribution provisions contained herein, notes including, without limitation, the provisions of Section 23A and 23B of the Federal Reserve Act, and except that no opinion need to financial statements, schedules and other financial and statistical data included, be expressed as to the effect or statistical availability of equitable remedies or appraisal methodology employed, injunctive relief (regardless of whether such enforceability is considered in the Registration Statement, a proceeding in equity or Prospectus or General Disclosure Packageat law).
(5viii) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to The Conversion Application has been approved by the Holding Company OTS and the Agent relating Prospectus has been authorized for use by the OTS and no action has been taken, and to the Offering and the Exchangesuch counsel's Actual Knowledge, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining none is pending or confirming exemptionsthreatened, qualifications to revoke any such authorization or the registration of the Common Stock under applicable state securities lawapproval.
(cix) (i) Concurrently with The Plan has been adopted by the execution required vote of this Agreementthe directors of the Company, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPMid-Tier Holding Company, dated the date hereof MHC and addressed to the AgentAssociation and, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within based upon the meaning certificate of the 1933 Actinspector of election, by the members of the MHC, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements stockholders of the Mid-Tier Holding Company included and the stockholders of the Association.
(x) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(xi) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xii) At the time the Conversion Application, including the Prospectus comply contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with generally accepted the requirements of the Conversion Regulations, the HOLA and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data and accounting principlesinformation included therein, as to which no opinion need be rendered).
(xiii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the 1934 Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiv) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the 1934 Act Regulations;form of certificate used to evidence the Shares is in proper form.
(xv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC, the Mid-Tier Holding Company or the Association is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's, the Mid-Tier Holding Company's or the Association's business, are, considered in the aggregate, not material.
(xvi) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvii) To such counsel's Actual Knowledge, the Company, the Mid-Tier Holding Company, the MHC and the Association have conducted the Conversion, in all material respects, in accordance with all applicable
Appears in 1 contract
Samples: Agency Agreement (Community Savings Bankshares Inc /De/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, or to the knowledge of the Primary PartiesCompany or the Bank, threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company’s and the Primary PartiesBank’s knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local P.C., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent as attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5d) A Blue Sky Memorandum blue sky memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(ce) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Company and the Bank in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and the Bank independently, or of the Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Company and the Bank complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the knowledge of the Company and the Bank, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Company and the Bank, threatened by the OTS or any state authority; and (viii) to the best knowledge of the Company and the Bank, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(f) Neither the Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Company and the Bank considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) neither the Company nor the Bank shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; (iii) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Company and the Bank, threatened against any of the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company and the Bank.
(h) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx McGladrey & Xxxxxx, LLP, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx McGladrey & Xxxxxx, LLP is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidBank as of December 31, 2008 and 2007, and for each of the years in the three-Tier Holding Company year period ended December 31, 2008, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors of each of the Company and the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings of the Bank, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the net assets of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(i) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by McGladrey & Xxxxxx, LLP in the letter delivered by it pursuant to subsection (h) of this Section 8, the “specified date” referred to in clause (ii) of subsection (h) to be a date specified in the letter required by this subsection (i) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(j) At the Closing Date, the Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) a certificate from the OTS evidencing the valid existence of the Bank; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLB-Dallas evidencing the Bank’s membership therein; and (vi) such other documents and certificates as the Agent may reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Parties Company and the Bank, herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Bank shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company’s or the Primary PartiesBank’s knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of received the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLP, LLP special counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers Company and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP Bank in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, as attached hereto as Exhibit B.
(d) A blue sky memorandum from Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Xxxxxxxxxx Xxxxxxxx LLP shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(ce) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company or the Bank and the conditions set forth in this Section 7 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company or the Bank independently, or of the Company and the Bank considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Company has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Company or the Bank, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Company or the Bank, threatened by the OTS or any state authority; and (viii) to the best knowledge of the Company or the Bank, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(f) Neither the Company nor the Bank shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Company and the Bank considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) neither the Company nor the Bank shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; (iii) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Company and the Bank taken as a whole; and (v) the Shares and the Foundation Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or Blue Sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company and the Bank.
(h) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLPMonroe Shine & Co., dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Xxxxx Xxxxxxx LLP Monroe Shine & Co. is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidBank as of September 30, 2007 and 2006, and for each of the years in the two-Tier Holding Company year period ended September 30, 2007, and covered by their opinion included therein, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Board of Directors, Executive Committee and Audit Committee of the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in borrowings of the Bank, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the net assets of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (h), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the Bank, the accounting system and other data prepared by the Bank, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(i) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Monroe Shine & Co. in the letter delivered by it pursuant to subsection (g) of this Section 7, the “specified date” referred to in clause (i) of subsection (h) to be a date specified in the letter required by this subsection (h) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(j) At the Closing Date, the Company shall receive a letter from RP Financial, LC., dated the Closing Date (i) confirming that said firm is independent of the Company and the Bank and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus and the 1934 Act Regulations;Contribution to the Foundation of the Foundation Shares; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) a certificate from the OTS evidencing the valid existence of the Bank; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; and (v) a certificate from the FHLB-Indianapolis evidencing the Bank’s membership therein.
(l) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a material decline in the price of equity or debt securities if the effect of such decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Bank in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(n) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to the Agent as to the statements made therein.
Appears in 1 contract
Samples: Agency Agreement (First Savings Financial Group Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.E.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations;
(ii) Concurrently with the execution of this Agreement, the Agent shall receive a letter from RSM McGladrey, Inc., dated the date hereof and addressed to the Agent, such letter (i) confirming that RSM McGladrey, Inc. is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited consolidated interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties included in the Prospectus, a reading of the minutes of the meetings of the Board of Directors, Executive Committee, Audit Committee, Loan Committee, Nominating Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations with officers of the Mid-Tier Holding Company and the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements or the “Recent Developments” information in the Prospectus or that such unaudited consolidated financial statements and “Recent Developments” information in the Prospectus comply as to form in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations; or (B) during the period from the date of the “Recent Developments” financial information included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), or non-performing loans, non-performing assets, special mention loans or decrease in the deposits or loan allowance, total assets, stockholders’ equity or there was any change in common stock outstanding (other than for stock option plans) at the date of such letter as compared with amounts shown in the December 31, 2009 audited statement of condition included in the Prospectus or there was any decrease in net interest income, non-interest income, net interest income after provision or net income, or increase in provision for loan losses or non-interest expense of the Primary Parties for the period commencing immediately after the Recent Development date and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the examination referred to and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Mid-Tier Holding Company, which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(i) At the Closing Date, the Agent shall receive a letter from Xxxxx Xxxxxxxx LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c)(i) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(ii) At the Closing Date, the Agent shall receive a letter from RSM McGladrey, Inc. dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c)(i) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Primary Sunshine Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Sunshine Parties shall have performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Sunshine Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application Commission and the Form AC and Holding Company Application shall have been approved by the OTSOTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary Sunshine Parties’ knowledge, threatened by the Commission, the OTS, the Commission FDIC or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of received the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Silver, Xxxxxxxx LLP& Xxxx, L.L.P., special counsel for Stifelthe Company and the Bank, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to as attached hereto as Exhibit C.
(d) At the effect that during the preparation of the Registration Statement and the ProspectusClosing Date, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which shall have received the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein andfavorable opinion, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and dated as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules Closing Date and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to the Holding Company Agent and for its benefit, of Xxxxxxx Spidi & Xxxxx, PC, special counsel for the Agent Agent, in form and substance as attached hereto as Exhibit D.
(e) A blue sky memorandum from Silver, Xxxxxxxx & Taff, L.L.P. relating to the Offering and the ExchangeOffering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Silver, Xxxxxxxx & Xxxx, L.L.P. shall state the Agent may rely. The Blue Sky Memorandum blue sky memorandum will address relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock Shares under applicable state securities law.
(cf) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Sunshine Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the 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, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Sunshine Parties and the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Sunshine Parties independently, or of the Sunshine Parties considered as one enterprise, whether or not arising in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Sunshine Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, to the best knowledge of the Sunshine Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the best knowledge of the Sunshine Parties, threatened by the OTS or any state authority; and (viii) to the best knowledge of the Sunshine Parties, no person has sought to obtain review of the final action of the OTS approving the Conversion.
(g) None of the Sunshine Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Sunshine Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Sunshine Parties shall have received from the OTS or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Sunshine Parties taken as a whole; (iii) none of the Sunshine Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Sunshine Parties, threatened against the any of the Sunshine Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Sunshine Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Sunshine Parties.
(i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Hacker, Xxxxxxx & Xxxxx Xxxxxxx LLPPA, dated as of the date hereof and addressed to the Agent, such letter : (i) confirming that Hacker, Xxxxxxx & Xxxxx Xxxxxxx LLP PA is a firm of independent registered public accountants within the meaning applicable rules of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the audited consolidated financial statements and related notes of the MidMHC as of December 31, 2009 and 2008, and for each of the years in the two-Tier Holding Company year period ended December 31, 2009, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus comply as to form in all material respects with generally accepted the applicable accounting principles, requirements and related published rules and regulations of the 1933 Act OTS and the 1933 Act Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors of each of the Sunshine Parties and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the OTS and accounting principles generally accepted in the United States of America applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Bank, other than normal deposit fluctuations for the Bank or in non-accrual loans; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits or total equity of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the MHC, which are subject to the internal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(j) At the Closing Date, the Agent shall receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Hacker, Xxxxxxx & Xxxxx PA in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (ii) of subsection (i) to be a date specified in the letter required by this subsection (j) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Company shall receive a letter from Xxxxxxx Financial Advisors, Inc., dated the Closing Date (i) confirming that said firm is independent of the Sunshine Parties and is experienced and expert in the area of corporate appraisals within the meaning of Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of Title 12 of the Code of Federal Regulations, and (iii) further stating that its opinion of the 1934 Act aggregate pro forma market value of the Company including the Bank, as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Agent shall receive: (i) a copy of the letters from the OTS approving the Form AC, the Holding Company Application and authorizing the use of the Prospectus; (ii) a copy of the order from the Commission declaring the Registration Statement effective; (iii) a certificate from the Maryland Department of Assessments & Taxation evidencing the good standing of the Company; (iv) certificates from the OTS evidencing the valid existence of the Bank, the MHC and Sunshine Financial; (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vi) a certificate from the FHLB-Atlanta evidencing the Bank’s membership therein; and (vii) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of commercial banks, or federal savings and loan associations or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the 1934 Act Regulations;Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Shares as herein contemplated and related proceedings or in order to evidence the occurrence or completeness of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Sunshine Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Sunshine Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Sunshine Party to the Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent to sell the Shares hereunder and the occurrence of the Closing and the Conversion are subject to (i) the condition that all accuracy of the representations and warranties on the part of the Primary Parties herein contained areCompany in all material respects on the date hereof, at any applicable date referred to in Section 3(u) and as of the commencement of the Offering and at and as of the each Closing Date, true and correct, (ii) the condition that performance by the Primary Parties shall have performed all Company of their its obligations hereunder to be performed on or before such dates in all material respects and to (iii) the following further conditions:
(a) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(v) hereof, an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for thx Xxxxxny, or other coxxxxx xatixxxxtory to the Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, opining as to the matters set forth in Exhibit A hereto.
(b) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(w) hereof, an opinion of Miles & Stockbridge, P.C., special counsel for the Company, or oxxxx counsel satisfactory to the Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, covering matters of Maryland law and opining as to the matters set forth in Exhibit B hereto.
(c) The Agent shall have received from the independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(x) hereof, letters, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent.
(d) The Company shall have furnished prior to the initial commencement of sales of Shares hereunder evidence reasonably satisfactory to the Agent and their counsel that the Registration Statement shall have been declared effective become effective.
(e) No amendment or supplement to the Registration Statement or Prospectus, including documents incorporated by the Commissionreference therein, the Conversion Application and the Holding Company Application shall have been approved by filed to which the OTSAgent shall have objected in writing.
(f) Prior to the initial commencement of sales of Shares hereunder and as of each Closing Date, and (i) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority post-effective amendment thereto, and no order directed at any document incorporated by reference therein and no order preventing or other action suspending the authorization for use of any Prospectus has been issued by the Prospectus or the consummation Commission, and no suspension of the Conversion shall have been issuedqualification of the Shares for offering or sale in any jurisdiction, or proceedings therefor initiated or, to the knowledge of the Primary Partiesinitiation or threatening of any proceedings for any of such purposes, threatened by the OTS, the Commission or any other governmental body.
has occurred; (bii) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has all amendments thereto shall not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any contain an untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made therein, not misleading misleading; and (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3iii) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein andall amendments or supplements thereto, although (without limiting the opinions provided pursuant to Section 10(b)(3))or modifications thereof, Xxxxxxxxxx Xxxxxxxx LLP has if any, shall not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any contain an untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made are made, not misleading misleading.
(it being understood that counsel need express no comment or opinion g) Prior to the initial commencement of sales of Shares hereunder and as of each Closing Date, the NASD shall not have raised any objections with respect to financial statementsthe fairness and reasonableness of the sales agency terms and arrangements.
(h) Prior to the initial commencement of sales of Shares hereunder and as of each Closing Date, notes the Shares shall have been approved for listing on the NYSE.
(i) Prior to financial statementsthe initial commencement of sales of Shares hereunder and as of each Filing Date, schedules and each other financial date referred to in Section 3(u) hereof, the Company shall have delivered to the Agent a certificate of two principal executive officers of the Company certifying to the matters set forth in Exhibit C.
(j) Prior to the initial commencement of sales of Shares hereunder and statistical data includedon each Filing Date, the Manager shall have furnished the Agent such documents and certificates as of the date of this Agreement as the Agent may reasonably request, including the certificate attached as Exhibit D hereto.
(k) All filings with the Commission required by Rule 424 under the Securities Act to have been filed shall have been made within the applicable time period prescribed for such filing by such Rule.
(l) Between the time of execution of this Agreement and any Closing Date there shall not have occurred any downgrading, or statistical any notice or appraisal methodology employedannouncement shall have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the Registration Statementrating accorded any securities of or guaranteed by the Company or any Subsidiary by any "nationally recognized statistical rating organization", or Prospectus or General Disclosure Package)as that term is defined in Rule 436(g)(2) under the Securities Act.
(5m) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed The Company shall perform such of its obligations under this Agreement as are to be performed by the Holding Company terms hereof at or before the time required for such performance and the Agent relating to the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities laweach Closing Date.
(c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that the audited consolidated financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations;
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of hereunder, as to the Agent hereunder and the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Conversion are subject extent not waived by the Agent, to the condition that all representations and warranties of the Primary Parties Company, the MHC and the Bank herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company, the MHC and the Bank shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and the Holding Company Application shall have been approved by the OTS, and the Holding Company Application approved by the OTS not later than 5:30 p.m. on the date of this Agreement, or with the Agent's consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Primary Parties, or threatened by the Commission Commission, or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Company's, the Primary PartiesMHC's or the Bank's knowledge, threatened by the OTSCommission, the Commission OTS or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit D.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxxxxxxxx Xxxxxxxx LLPXxxxxxx, Spidi, Sloane & Xxxxx, P.C., special counsel for Stifelthe Company, with respect to such matters as the Agent may reasonably require; such opinion may relyMHC and the Bank, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the preparation laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus.
(ii) The Bank has been duly organized and is a validly existing federal savings association in capital stock form of organization, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of duly authorized to conduct its business and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained own its property as described in the Registration Statement and Prospectus, on the basis . All of the foregoingoutstanding capital stock of the Bank will be duly authorized and, nothing upon payment therefor, will be validly issued, fully paid and non-assessable and will be owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) The MHC has come been duly organized and is a validly existing federal mutual holding company duly authorized to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The Bank is a member of the FHLB-Des Moines. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization-Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(v) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued upon incorporation of the Company, no shares of Common Stock have been issued prior to the Closing Date; at the time it was declared effective of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Commission and as Company pursuant to the Plan against payment of the date of such letter or that consideration calculated as set forth in the General Disclosure Package as Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Applicable Time, contained or contains any untrue statement of a material fact or omitted Shares is not subject to state any material fact required to be stated therein or necessary to make preemptive rights and the statements therein in light terms and provisions of the circumstances under which they were made not misleading Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(it being understood that counsel need express no comment vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of the Company, the MHC, and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or opinion other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to financial statementsthe indemnification and/or contribution provisions contained herein, notes including, without limitation, the provisions of Section 23A and 23B of the Federal Reserve Act, and except that no opinion need to financial statements, schedules and other financial and statistical data included, be expressed as to the effect or statistical availability of equitable remedies or appraisal methodology employed, injunctive relief (regardless of whether such enforceability is considered in the Registration Statement, a proceeding in equity or Prospectus or General Disclosure Packageat law).
(5vii) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS. The OTS has approved the Holding Company Application, and the Agent relating to purchase by the Offering and the Exchange, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity Company of obtaining or confirming exemptions, qualifications or the registration all of the Common Stock under applicable state securities lawissued and outstanding capital stock of the Bank has been authorized by the OTS and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(cviii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC and the stockholders of the Bank.
(iix) Concurrently Subject to the satisfaction of the conditions to the OTS's approval of to the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the Agent shall receive a letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants within the meaning issuance of the 1933 ActShares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act Regulations and no stop order suspending the PCAOB Regulationseffectiveness has been issued under the 1933 Act or proceedings therefor initiated or, and stating in effect that to such counsel's Actual Knowledge, threatened by the audited consolidated financial statements of Commission.
(xi) At the Mid-Tier Holding Company included in time the Conversion Application, including the Prospectus comply contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in all material respects with generally accepted accounting principlesthe requirements of the Conversion Regulations, federal law and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the 1934 Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the 1934 Act Regulations;form of certificate used to evidence the Shares is in due and proper form.
(xiv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC or the Bank is a party or of which any of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Conversion Application, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in the Conversion Application, the Registration Statement or the Prospectus. The description in the Conversion Application, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xvi) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the Plan and applicable federal law, and the Plan complies in all material respects with all applicable Delaware and federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations (except where a written waiver has been received); no order has been issued by the OTS, the Commission or any state authority to suspend the Offerings or the use of the Prospectus, and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OTS or the Commission or any state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus.
(xvii) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have obtained all material federal and Delaware licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have a material adverse affect on the business or operations of the Bank, the MHC and the Company, taken as a whole.
(xviii) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of its articles of incorporation, bylaws, or charter, as applicable, or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound except for such defaults or violations which would not have a material adverse impact on the financial condition or results of operations of the Company, the MHC nor the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the occurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC or the Bank is subject (other than the establishment of a liquidation account), and such action will not result in any violation of the provisions of the articles of incorporation, bylaws or charter, as applicable, of the Company, the MHC or the Bank, or any applicable federal or Delaware law, act, regulation (except that no opinion need be rendered with respect to the securities or blue sky laws of various jurisdictions or the rules and regulations of the NASD and/or the Nasdaq National Market) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the General Corporation Law ("GCL") of the State of Delaware. The Bank's and the MHC's charter and bylaws comply in all material respects with the HOLA and the rules and regulations of the OTS.
(xx) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business.
(xxi) The information in the Prospectus under the captions "Regulation," "The Conversion and Reorganization," "Restrictions on Acquisition of the Company" and "Description of Capital Stock of the Company," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the Conversion process under the caption "The Conversion and Reorganization" in the Prospectus has been reviewed by such counsel and is in all material respects correct. The discussion of statutes or regulations described or referred to in the Prospectus are accurate summaries and fairly present the information required to be shown. The information under the caption "The Conversion and Reorganization-Tax Aspects" has been reviewed by such counsel and constitutes a correct summary of the opinions rendered by Xxxxxxx, Spidi, Sloane & Xxxxx, P.C. and Xxxxx, Xxxxx to the Company, the MHC and the Bank with respect to such matters.
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