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, in all material respects, 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 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 to any of the Primary Parties' best knowledge or proceedings therefor initiated or 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 to any of the Primary Parties' best knowledge, or proceedings therefor initiated or 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 Xxxxxx Xxxxxxxx & Xxxxxx, and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect. (ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened. (v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan. (vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help. (vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws. (viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered. (ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission. (x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form. (xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder. (xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
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, in all material respects, 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 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, Commission and the Conversion Application and 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 to any of the Primary Parties' best knowledge or proceedings therefor therefore initiated 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 or proceedings therefore initiated or, to any of the Primary Parties' best Company's or the Bank's knowledge, or proceedings therefor initiated or threatened by the Commission, the OTS, the CommissionFDIC, or any other governmental bodystate authority.
(bc) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing DateDate and addressed to the Agent and for its benefit, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & XxxxxxVorys, and/or local Satex, Xxxxxxx xxx Peasx, xxecial counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company has been duly incorporated and is validly existing as a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with Ohio.
(ii) The Company has corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, ; and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).the
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed, in all material respects, 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, Commission and the Conversion Application and Holding Company Application prospectus contained in the MHC-2 shall have been approved by the OTS for mailing prior to the commencement of the Offering, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to any of the Primary Parties' best knowledge or proceedings therefor initiated or knowledge, 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 Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., and/or local counsel acceptable to the Agent, Agent in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the State United States of DelawareAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where in which the failure to qualify would have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) On the date hereof, the The Bank is a duly organized and validly existing federally-federally chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, bank with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as Bank described in the Prospectus, Prospectus are permitted for unitary under federal law to subsidiaries of a savings and loan holding companies, mutual holding companies and a federally-chartered stock bank holding company under applicable that is a federal lawcorporation. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, knowledge no proceedings for the termination or revocation of the federal or state deposit such insurance of the Bank are pending or threatened.
(v) The MHC is duly organized and validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation the Bank's reorganization into the mutual holding company form of organization); (b) the shares of Common Stock of the Holding Company issued to facilitate the Conversion)MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (bc) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (cd) the issuance of the Shares shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Holding CompanyPrimary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity the extent that the provisions of Sections 10 and contribution thereunder 11 hereof may be limited under applicable lawunenforceable as against public policy, subject and except to the qualification extent that (i) enforcement thereof such enforceability may be limited by bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability enforcement of creditors' rights generally, or the rights of creditors of savings banks or other financial institutions, the accounts of which are institutions insured by the FDIC, or FDIC (including the reorganization of financial institutions 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 laws relating to the effect rights of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of contracting parties to equitable remedies, including the remedies of specific performance and self-help).
(viiviii) The Plan has been duly adopted by the Board boards of Directors directors of the MHC Primary Parties in the manner required by the Conversion Regulations and the MHC's charter and bylawsRegulations.
(viiiix) The Conversion Application MHC-2 has been approved by the OTS and the Holding Company Application have Prospectus has been approved authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvalsOTS approvals and clearance under applicable securities laws, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be renderedOffering.
(ixx) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledgeAct, no stop order suspending the effectiveness of the Registration Statement has been issued, or and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened by the Commissionthreatened.
(xxi) The material tax consequences of the Offering are set forth in the Prospectus under the caption "Summary - Tax Consequences of the Offering." The information in the Prospectus under the caption "Summary - Tax Consequences of the Offering." has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and Xxxxx Xxxxxx Company LLP to the Primary Parties with respect to such matters.
(xii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xixiii) At the time the Conversion Application MHC-2 was approved, the Conversion Application MHC-2 (as amended or supplemented)) including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ApplicationsMHC-2.
(xiixiv) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiiixv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Offering or the offer, sale or issuance of the Shares.
(xivxvi) The information in the Prospectus under the captions "Supervision and Regulation," "Federal and State Taxation," "Restrictions on the Acquisition of Fidelity Colonial Bankshares, Inc.Inc. and Colonial Bank, FSB," "Description of Capital Stock of Fidelity Colonial Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information it 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 (other than except as to the financial statements, notes to financial statements, financial tables statements and other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed, in all material respects, 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 Holding Company Application shall have been approved by the OTS Commission and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to any of the Primary Parties' best knowledge or proceedings therefor initiated or knowledge, 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 Offering shall have been issued or proceedings therefore initiated or, to any of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the OTS, the Commission, Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., and/or local counsel acceptable to the Agent, Agent in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where in which the failure to qualify would have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) On the date hereof, the The Bank is a duly organized and validly existing federally-New Jersey chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, bank with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as Bank described in the Prospectus, Prospectus are permitted for unitary under New Jersey law to a New Jersey chartered savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal lawbank. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, knowledge no proceedings for the termination or revocation of the federal or state deposit such insurance of the Bank are pending or threatened.
(v) The MHC is duly organized and validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation the Bank's reorganization into the mutual holding company form of organization); (b) the shares of Common Stock of the Holding Company issued to facilitate the Conversion)MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (bc) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (cd) the issuance of the Shares shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation charter or bylaws of any of the Holding CompanyPrimary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan; and (e) the shares of Common Stock of the Holding Company and $500,000 in cash to be contributed to the Charitable Foundation will have been duly and validly authorized for issuance and delivery.
(vivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity the extent that the provisions of Sections 10 and contribution thereunder 11 hereof may be limited under applicable lawunenforceable as against public policy, subject and except to the qualification extent that (i) enforcement thereof such enforceability may be limited by bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability enforcement of creditors' rights generally, or the rights of creditors of savings banks or other financial institutions, the accounts of which are institutions insured by the FDIC, or FDIC (including the reorganization of financial institutions 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 laws relating to the effect rights of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of contracting parties to equitable remedies, including the remedies of specific performance and self-help).
(viiviii) The Plan has been duly adopted by the Board board of Directors directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be renderedCompany.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledgeAct, no stop order suspending the effectiveness of the Registration Statement has been issued, or and, to such counsel's knowledge, no proceedings for that purpose have been instituted or threatened by the Commissionthreatened.
(x) The material tax consequences of the Offering are set forth in the Prospectus under the caption "Summary - Tax Consequences of the Offering." The information in the Prospectus under the caption "Summary - Tax Consequences of the Offering" has been reviewed by such counsel and fairly describes such opinion rendered by such counsel to the Primary Parties with respect to such matters.
(xi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Offering or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Supervision and Regulation," "Federal and State Taxation," "Restrictions on the Acquisition of Fidelity BanksharesMagyar Bancorp, Inc.Inc. and Magyar Bank," "Description of Capital Stock of Fidelity BanksharesMagyar Bancorp, Inc.," and "The Conversion Reorganization and the Stock Offering," to the extent that such information it 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 (other than except as to the financial statements, notes to financial statements, financial tables statements and other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion).
Appears in 1 contract
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 and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed, in all material respects, 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 CommissionCommission and the MHC Notice and Application approved by the OTS prior to the commencement of the Offering, the Conversion Application and Holding Company Application shall have been approved by the OTS approved, 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 any of the Primary Parties' best knowledge or proceedings therefor initiated or knowledge, 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 any of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Luse Xxxxxx, and/or local counsel acceptable to the Agent, in xx form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the State United States of DelawareAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where in which the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action material adverse effect on the part of the Holding Company and the Bank andfinancial condition, upon payment therefor in accordance with the terms of the Planearnings, will be validly issuedcapital, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim properties or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part business affairs of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
Appears in 1 contract
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 Alpena Parties herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct, the condition that the Primary Alpena Parties shall have 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) The Registration Statement shall have been declared effective by the Commission, the Conversion Application and 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 to any of the Primary Parties' best knowledge or proceedings therefor initiated or or, to the knowledge of the Alpena 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 to any of the Primary Parties' best knowledgeissued, or proceedings therefor initiated or or, to the knowledge of the Alpena 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 Xxxxxx Luse, Gorman, 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 to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareMaryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, Prospectus and is duly qualified to transact business and is in good standing in Delaware Maryland and in each other jurisdiction in which the conduct of its business requires such qualification and qualification, except where the failure to qualify would have a Material Adverse Effect.
(ii) On The MHC is a mutual holding company duly organized and validly existing and in good standing under the date hereoflaws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would have a Material Adverse Effect.
(iii) The Bank is a duly organized and validly existing federally-chartered stock savings bankassociation, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bankassociation, 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 hereunderProspectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. FSMC and ICA are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage.
(iiiiv) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization authorizations are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying comply therewith in all material respects.
(ivv) The Bank is a member of the FHLB of Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(vvi) Upon consummation of the ConversionConversion and the contribution of the Foundation Shares to the Foundation, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company Shares to be subscribed for in the Offering Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (b) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; (c) the Foundation Shares to be issued to the Foundation will have been duly and validly authorized for issuance, and when issued and contributed by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (cd) the issuance of the Shares, the Exchange Shares and the Foundation Shares is not subject to preemptive rights under the charter, articles certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, or under any contract, indenture, agreement, instrument or other documentdocument known to such counsel, except for the subscription rights under the Plan.
(vivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Alpena Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Alpena Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions 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.
(viiviii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viiiix) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, the issuance of the Exchange Shares, the contribution of the Foundation 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.
(ixx) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(xxi) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms form of certificates proposed certificate to be used to evidence the shares of Common Stock are in due and proper form.
(xixii) At the time the Conversion Application was approvedapproved and as of the Closing Date, the Conversion Application (as amended or supplemented), the Prospectus (as amended or supplemented), the Members' Proxy Statement (as amended or supplemented) and the Stockholders' Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xiixiii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder1933 Act Regulations.
(xiiixiv) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares or the issuance of the Exchange Shares or the Foundation Shares.
(xivxv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).captions
Appears in 1 contract
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 Rainier Pacific Parties herein contained are, at and as of the commencement of the Offering Offerings 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 Rainier Pacific Parties shall have 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 Rainier Pacific 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 Department, the FDIC and the SEC or any other authority government.
(b) The Registration Statement shall have been declared effective by the CommissionSEC, the Conversion Application and Holding Company Application shall have been approved by the OTS Department and the FDIC and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefor initiated or or, to the knowledge of the Rainier Pacific 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 to any of the Primary Parties' best knowledgeissued, or proceedings therefor initiated or or, to the knowledge of the Rainier Pacific Parties, threatened by the OTSDepartment, the FDIC, the Commission, or any other governmental body.
(bc) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx Breyer & Xxxxxx, Associates PC and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareWashington, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the The Bank is a validly existing federally-Washington chartered stock mutual savings bank, and upon consummation of the Conversion, the Bank will continue to be become a validly existing federally-Washington 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 and Washington law and the rules, rules and regulations and practices of the FDIC and the OTSDepartment (or valid waivers granted it by the FDIC and the Department from such rules and regulations); the issuance and sale all of the capital stock of the Bank to the Holding Company in be outstanding upon completion of the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities Bank is a member in good standing of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal lawFederal Home Loan Bank of Seattle. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledgeActual Knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(viv) Upon consummation of the Conversion, and the issuance of Foundation Shares to the Foundation immediately upon completion of the Conversion, subject to compliance with all conditions imposed upon the Foundation and the contribution of the Foundation Shares to the Foundation by the Department and the FDIC under the terms of the approval order or nonobjection of the Department and the FDIC, in an amount as described in the Prospectus, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the ConversionCompany); (b) the shares of Common Stock of the Holding Company Shares to be subscribed for in the Offering Offerings and the Foundation Shares will have been duly and validly authorized for issuance, and and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (c) the issuance of the Shares and the Foundation Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, or under any contract, indenture, agreement, instrument or other documentdocument known to such counsel, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid. To such counsel's Actual Knowledge, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of Foundation Shares, good title to the ConversionShares and the Foundation Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, except subject to such claims as may be required under asserted against the securities or "blue sky" laws of various jurisdictions as to which no opinion need be renderedpurchasers thereof by third-party claimants.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
Appears in 1 contract
Samples: Agency Agreement (Rainier Pacific 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 Monadnock Parties herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct, the condition that the Primary Monadnock Parties shall have performed, in all material respects, 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 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 to any of the Primary Parties' best knowledge or proceedings therefor initiated or or, to the best knowledge of the Monadnock 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 to any of the Primary Parties' best knowledgeissued, or proceedings therefor initiated or or, to the best knowledge of the Monadnock 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 Lxxx Xxxxxx Xxxxxxxx & XxxxxxSxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareMaryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, Prospectus and is duly qualified to transact business and is in good standing in Delaware Maryland and in each other jurisdiction in which the conduct of its business requires such qualification and qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) On the date hereof, the The Bank is a duly organized and validly existing federally-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunderProspectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual holding companies and a federally-chartered stock holding company under applicable federal law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Directors of the MHC in the manner required by the Conversion Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity Bankshares, Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
Appears in 1 contract
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 and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed, in all material respects, 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, Commission and the Conversion Application prospectus and Holding Company proxy statement contained in the MHC Notice and Application shall have been approved by the OTS for mailing prior to the commencement of the Offering, the Holding Company Application shall have been approved, 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 any of the Primary Parties' best knowledge or proceedings therefor initiated or knowledge, 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 any of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & XxxxxxXxxxx Xxxxxxx, and/or local counsel acceptable to the Agent, Agent in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the State United States of DelawareAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification and except where in which the failure to qualify would have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) On the date hereof, the The Bank is a duly organized and validly existing federally-federally chartered stock mutual savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings bank, association with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable nonassessable, and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding Company, the MHC and the Bank, as Bank described in the Prospectus, Prospectus are permitted for unitary under federal law to subsidiaries of a savings and loan holding companies, mutual holding companies and a federally-chartered stock bank holding company under applicable that is a federal lawcorporation. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Seattle and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, knowledge no proceedings for the termination or revocation of the federal or state deposit such insurance of the Bank are pending or threatened.
(v) Upon consummation of the ConversionReorganization, the MHC will have been duly organized and will be validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the ConversionCompany); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (cd) the issuance of the Shares shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Holding CompanyPrimary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity the extent that the provisions of Sections 10 and contribution thereunder 11 hereof may be limited under applicable lawunenforceable as against public policy, subject and except to the qualification extent that (i) enforcement thereof such enforceability may be limited by bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability enforcement of creditors' rights generally, or the rights of creditors of savings banks or other financial institutions, the accounts of which are institutions insured by the FDIC, or FDIC (including the reorganization of financial institutions 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 laws relating to the effect rights of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of contracting parties to equitable remedies, including the remedies of specific performance and self-help).
(viiviii) The Plan has been duly adopted by the Board board of Directors directors of the MHC Bank and by the members of the Bank, in the manner required by the Conversion Regulations and the MHCBank's charter and bylaws.
(viiiix) The Conversion Application and the Holding Company Application OTS Applications have been approved by the OTS and the Prospectus and the Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be renderedReorganization.
(ixx) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS and no action has been taken, or, to such counsel's knowledge, is pending or threatened, to revoke any such authorization or approval.
(xi) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledgeAct, no stop order suspending the effectiveness of the Registration Statement has been issued, or and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened by the Commissionthreatened.
(xxii) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Reorganization -- Federal and State Tax Consequences of the Reorganization." The information in the Prospectus under the caption "The Reorganization -- Federal and State Tax Consequences of the Reorganization" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and Xxxxxxxx XxxXxxxxxx & Co. to the Primary Parties with respect to such matters.
(xiii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xixiv) At the time the Conversion MHC Notice and Application was approved, the Conversion MHC Notice and Application (as amended or supplemented)) including the Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the OTS Applications.
(xiixv) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiiixvi) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Reorganization or the offer, sale or issuance of the Shares.
(xivxvii) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Fidelity BanksharesEagle", Inc."Eagle Bancorp's Charter and Bylaws," "Description of Capital Stock of Fidelity Bankshares, Inc.Stock," "The Reorganization," and "The Conversion and the Offering," to the extent that such information it 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 (other than except as to the financial statements, notes to financial statements, financial tables statements and other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion).
Appears in 1 contract
Samples: Agency Agreement (Eagle Bancorp/Mt)
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 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, in all material respects, 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 CommissionCommission and the MHC Notice and Application and the NJ Application shall have been approved by the FDIC and the DOBI, as applicable, the Conversion Application and Holding Company Application shall have been approved by the OTS FRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefor initiated or 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 to any of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the OTSFDIC, the DOBI, the FRB, 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 Xxxxxx Xxxxxxxx & XxxxxxThacxxx Xxxxxxxx, and/or xxd/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Delaware New Jersey and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federallyNew Jersey-chartered stock mutual savings bank, and upon consummation of the ConversionReorganization, the Bank will continue to be a duly-organized and validly existing federallyNew Jersey-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 and New Jersey law and the rules, regulations and practices of the FDIC and the OTSDOBI; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Mid-Tier Holding CompanyMHC, the MHC Holding Company and the Bank, as described in the Prospectus, are permitted for unitary savings and loan holding companies, mutual bank holding companies and for subsidiaries of a federallybank holding company and a Delaware-chartered stock holding company under applicable federal and state law. To the best of such counsel's knowledge, each of the MHC, the Mid-Tier Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the ConversionReorganization, the MHC will have been duly organized and will be validly existing as a mutual savings bank holding company chartered under New Jersey law, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," ", and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the ConversionReorganization); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (cd) the issuance of the Conversion Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of federally chartered savings banks or other financial institutionsassociations, the accounts of which are insured by the FDIC, or the reorganization of financial institutions 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 equity remedies, including the remedies of specific performance and self-help.
(viiviii) The Plan has been duly adopted by the Board board of Directors directors of the MHC Bank and by the voting depositors of the Bank, in the manner required by the Conversion Regulations and the MHCBank's charter and bylaws.
(viiiix) The Conversion NJ Application and the Holding Company Application have has been approved by the OTSDOBI, the FRB has approved the Holding Company Application, and the Bank has received the non-objection of the FDIC to the Reorganization, 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 ConversionReorganization, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(ixx) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened by the Commission.
(xxi) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Reorganization and the Offering - Tax Effects of the Reorganization". The information in the Prospectus under the caption "The Reorganization and the Offering - Tax Effects of the Reorganization" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel to the Primary Parties with respect to such matters.
(xii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xixiii) At the time the Conversion MHC Notice and Application and the NJ Application was approved, the Conversion MHC Notice and Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTSFDIC and the DOBI, except as modified or waived in writing by the OTS FDIC and/or the DOBI (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in FDIC, the DOBI, or the FRB approving the Applications.
(xiixiv) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiiixv) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Reorganization or the offer, sale or issuance of the Shares.
(xivxvi) The information in the Prospectus under the captions "RegulationRegulation of Hudsxx Xxxy Savings Bank and Hudsxx Xxxy Bancorp," "Taxation," "Restrictions on the Acquisition of Fidelity BanksharesHudsxx Xxxy Bancorp and Hudsxx Xxxy Savings", Inc.," "Description of Capital Stock of Fidelity Bankshares, Inc.Hudsxx Xxxy Bancorp," and "The Conversion Reorganization and the Offering," to the extent that such information it 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 (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
Appears in 1 contract
