Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Offering are subject to the condition that all representations and warranties of the Kaiser Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct, the condition that the Kaiser 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 Kaiser Parties shall have conducted the Offering 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 Offering imposed upon them by the OTS and the SEC or any other regulatory authority. (b) The Registration Statement shall have been declared effective by the SEC, the OTS Application 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 therefor initiated or, to the knowledge of the Kaiser 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 Offering shall have been issued or proceedings therefor initiated or, to the knowledge of the Kaiser Parties, threatened by the OTS, the Commission or any other governmental body. (c) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Date, of Xxxxxxx & Xxxxxxxxx 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 stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules and regulations of the OTS; all of the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Parties 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 Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is a member in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination or revocation of the federal deposit 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 Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants. (vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help. (viii) The Plan complies in all material respects with the Conversion Regulations, the OTS Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus. (ix) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened. (x) The material tax consequences of the Offering are set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters. (xi) The terms and provisions of the Shares conform in all material respects 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 are in due and proper form in compliance with applicable laws. (xii) At the time the OTS Application, including the Prospectus contained therein, was approved by the OTS, the OTS Application, including the Prospectus contained therein, as amended or supplemented, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1933 Act Regulations and the 1934 Act Regulations (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). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the OTS application. (xiii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Regulations. (xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Offering or the offer, sale or issuance of the Shares or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein. (xv) The information in the Prospectus under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown.
Appears in 1 contract
Samples: Agency Agreement (K Fed Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent to sell the Shares hereunder and the occurrence of the Closing and the Offering are subject to (i) the condition that all accuracy of the representations and warranties on the part of the Kaiser Parties herein contained areCompany in all material respects on the date hereof, at any applicable date referred to in Section 3(u) and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the each Closing Date, true and correct, (ii) the condition that performance by the Kaiser Parties shall have performed, Company of its obligations hereunder in all material respects, all of their obligations hereunder to be performed on or before such dates respects and to (iii) the following further conditions:
(a) At the Closing Date, the Kaiser Parties The Agent shall have conducted the Offering 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 Offering imposed upon them by the OTS and the SEC or any other regulatory authority.
(b) The Registration Statement shall have been declared effective by the SEC, the OTS Application shall have been approved by the OTS for mailing received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(v) hereof, an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Offering and no stop order Company, or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, coxxxxx xatixxxxtory to the knowledge of the Kaiser 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 Offering shall have been issued or proceedings therefor initiated or, Agent addressed to the knowledge of the Kaiser Parties, threatened by the OTS, the Commission or any other governmental body.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinionAgent, dated as of the Closing Date, of Xxxxxxx & Xxxxxxxxx and/or local counsel acceptable to the Agent, such dates and in form and substance satisfactory to the Agent, opining as to the matters set forth in Exhibit A hereto.
(b) The Agent shall have received prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(w) hereof, an opinion of Miles & Stockbridge, P.C., special counsel for the Agent Company, or other counsel satisfactory to the effect that:Agent, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent, covering matters of Maryland law and opining as to the matters set forth in Exhibit B hereto.
(c) The Agent shall have received from the independent certified public accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, prior to the initial commencement of sales of Shares hereunder and at every other date specified in Section 3(x) hereof, letters, addressed to the Agent, dated as of such dates and in form and substance satisfactory to the Agent.
(d) The Company shall have furnished prior to the initial commencement of sales of Shares hereunder evidence reasonably satisfactory to the Agent and their counsel that the Registration Statement shall have become effective.
(e) No amendment or supplement to the Registration Statement or Prospectus, including documents incorporated by reference therein, shall have been filed to which the Agent shall have objected in writing.
(f) Prior to the initial commencement of sales of Shares hereunder and as of each Closing Date, (i) The Holding Company is a stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules and regulations of the OTS; all of the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Parties 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 Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination or revocation of the federal deposit 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 Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(viii) The Plan complies in all material respects with the Conversion Regulations, the OTS Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no order directed at any document incorporated by reference therein and no order preventing or suspending the use of any Prospectus has been issuedissued by the Commission, or proceedings for that purpose have been instituted or threatened.
(x) The material tax consequences and no suspension of the Offering are set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters.
(xi) The terms and provisions qualification of the Shares conform for offering or sale in all material respects to any jurisdiction, or of the description thereof contained in initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and the Prospectus, and the forms all amendments thereto shall not contain an untrue statement of certificates proposed material fact or omit to state a material fact required to be used stated therein or necessary to evidence make the Shares statements therein, not misleading; and (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are in due and proper form in compliance with applicable lawsmade, not misleading.
(xiig) At Prior to the time the OTS Application, including the Prospectus contained therein, was approved by the OTS, the OTS Application, including the Prospectus contained therein, as amended or supplemented, complied as to form in all material respects with the requirements initial commencement of the Conversion Regulations, the 1933 Act Regulations and the 1934 Act Regulations (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). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review sales of the final action of the OTS approving the OTS application.
(xiii) At the time that the Registration Statement became effective Shares hereunder and as of the each Closing Date, the Registration StatementNASD shall not have raised any objections with respect to the fairness and reasonableness of the sales agency terms and arrangements.
(h) Prior to the initial commencement of sales of Shares hereunder and as of each Closing Date, the Shares shall have been approved for listing on the NYSE.
(i) Prior to the initial commencement of sales of Shares hereunder and as of each Filing Date, and each other date referred to in Section 3(u) hereof, the Company shall have delivered to the Agent a certificate of two principal executive officers of the Company certifying to the matters set forth in Exhibit C.
(j) Prior to the initial commencement of sales of Shares hereunder and on each Filing Date, the Manager shall have furnished the Agent such documents and certificates as of the date of this Agreement as the Agent may reasonably request, including the Prospectus (certificate attached as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 RegulationsExhibit D hereto.
(xivk) To All filings with the Commission required by Rule 424 under the Securities Act to have been filed shall have been made within the applicable time period prescribed for such counsel's Actual Knowledgefiling by such Rule.
(l) Between the time of execution of this Agreement and any Closing Date there shall not have occurred any downgrading, there are no legal or governmental proceedings pending any notice or threatened announcement shall have been given or made of (i) asserting the invalidity of this Agreement, any intended or potential downgrading or (ii) seeking to prevent the Offering any review or the offerpossible change that does not indicate an improvement, sale or issuance of the Shares or (iii) which are required to be disclosed in the Registration Statement and Prospectusrating accorded any securities of or guaranteed by the Company or any Subsidiary by any "nationally recognized statistical rating organization", other than those disclosed thereinas that term is defined in Rule 436(g)(2) under the Securities Act.
(xvm) The information in the Prospectus Company shall perform such of its obligations under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations this Agreement as are accurate summaries and fairly present the information required to be shownperformed by the terms hereof at or before the time required for such performance and each Closing Date.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Offering are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Kaiser Parties Company herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Kaiser Parties Company shall have performed, in all material respects, performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Kaiser Parties shall have conducted the Offering 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 Offering imposed upon them by the OTS and the SEC or any other regulatory authority.
(b) The Registration Statement shall have been declared effective by the SECCommission not later than 5:30 p.m. Eastern Time on the date of this Agreement, or with the OTS Application shall have been approved by Agent’s consent at a later time and date; and at the OTS for mailing prior to the commencement of the Offering and Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Kaiser Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Offering shall have been issued or proceedings therefor therefore initiated or, to the knowledge of the Kaiser PartiesCompany’s knowledge, threatened by the OTS, the Commission or any other governmental bodyfederal or state authority.
(cb) At the Closing Date, the Agent shall have received:received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for the Company, in form and substance as attached hereto as Exhibit B. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. Such counsel also may assume, with respect to all matters governed by the laws of jurisdictions other than the law of the State of Ohio and the federal law of the United States and the General Corporation Law of the State of Delaware, that such laws are the same as Ohio law.
(1c) The On Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date, of Xxxxxxx & Xxxxxxxxx and/or local Xxxxxx Price P.C., counsel acceptable to for the Agent, in form and substance satisfactory to the Agent and Agent. In giving such opinion such counsel for the Agent may rely, as to the effect that:
(i) The Holding Company is a stock corporation duly organized and validly existing under all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, with corporate power upon the opinions of counsel satisfactory to the Agent. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and authority its subsidiaries and certificates of public officials.
(d) Each of the executive officers and directors of the Company which are listed on Exhibit D hereto has executed and delivered the lock-up agreements substantially in the form of Exhibit C hereto.
(e) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company in form and substance reasonably satisfactory to own its the Agent’s counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and to conduct its business the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as described of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described there has been no material adverse change in the Registration Statement and condition, financial or otherwise, or in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities earnings, capital, properties or business of the Bank Company independently, or of the Company considered as described one enterprise, whether or not arising in the Prospectus are permitted by the rules and regulations ordinary course of the OTSbusiness; all of the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Parties 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 Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member the representations and warranties in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, Section 4 are true and to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination or revocation of the federal deposit 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 Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(viii) The Plan complies correct in all material respects with the Conversion Regulations, the OTS Application has been approved by the OTS same force and the Prospectus has been authorized for use by the OTS effect as though expressly made at and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use as of the Prospectus, Closing Date; (v) the Company has complied in all material respects with all agreements and subject satisfied all conditions on its part to be performed or satisfied at or prior to the satisfaction of any conditions set forth Closing Date and will comply 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 all material respects with all obligations to be satisfied by it after the execution Closing Date; and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus.
(ixvi) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issuedinitiated or, to best the knowledge of the Company, threatened by the Commission or proceedings for that purpose have been instituted or threatenedany state authority.
(xf) The material tax consequences Company shall not have sustained, since the date of the Offering are latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters.
(xi) The terms and provisions of the Shares conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, and since the forms respective dates as of certificates proposed which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is, in the Agent’s reasonable judgment, sufficiently material and adverse as to be used make it impracticable or inadvisable to evidence proceed with the Offering or the delivery of the Shares are on the terms and in due and proper form the manner contemplated in compliance with applicable lawsthe Prospectus.
(xiig) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Company considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) the Company shall not have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a whole; (iii) the Company shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the best knowledge of the Company, threatened against the Company or affecting any of its properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a whole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Offering; and (vi) each of the Series B Shares, the Shares and the Common Shares issuable upon conversion of the Series B Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(h) At the time of the OTS Application, including the Prospectus contained therein, was approved by the OTSexecution of this Agreement, the OTS ApplicationAgent shall have received from S.R. Xxxxxxxxx, including X.X., the Prospectus contained thereincurrent independent registered public accounting firm for the Company, as amended or supplementeda letter dated such date, complied as in form and substance satisfactory to form in all material respects with the requirements Agent containing statements and information of the Conversion Regulations, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the 1933 Act Regulations financial statements and certain financial information contained in the Registration Statement and the 1934 Act Regulations (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). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the OTS applicationProspectus.
(xiiii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration StatementAgent shall receive a letter dated the Closing Date, including addressed to the Prospectus Agent, confirming the statements made by S.R. Xxxxxxxxx, X.X. in the letter delivered by it pursuant to subsection (as amended or supplementedh) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Regulationsthis Section 8.
(xivj) To such counsel's Actual KnowledgeFINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements, if required.
(k) Subsequent to the date hereof, there are no legal or governmental proceedings pending or threatened shall not have occurred any of the following: (i) asserting any domestic or international event or act or occurrence has materially disrupted the invalidity of this AgreementUnited States securities market such as to make it, in the Agent’s reasonable opinion, impracticable or inadvisable to proceed with the Offering; (ii) seeking a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on The NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or The NASDAQ Stock Market or by order of the Commission or any other governmental authority; (iii) a general moratorium on the operations of commercial banks or federal savings and loan associations, or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities, or a moratorium in foreign exchange trading by major international banks or persons has been declared; (iv) the engagement by the United States in major hostilities or escalation thereof or the declaration, on or after the date hereof, of a national emergency or war, or (v) a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to prevent proceed with the Offering or the offer, sale or issuance delivery of the Shares or (iii) which are required to be disclosed on the terms and in the manner contemplated in the Registration Statement and the Prospectus, other than those disclosed therein.
(xvl) The information in the Prospectus under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," At or prior to the extent that Closing Date, counsel to the Agent shall have been furnished with such information constitutes matters documents and opinions as they may reasonably require for the purpose of law, summaries enabling them to pass upon the sale of legal matters, documents the Shares as herein contemplated and related proceedings or proceedingsin order to evidence the occurrence or completeness of any of the representations or warranties, or legal conclusionsthe fulfillment of any of the conditions, has been reviewed herein contained; and all proceedings taken by the Company in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(m) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Company and is accurate in all material respects. The descriptions in delivered to the Prospectus of statutes Agent or regulations are accurate summaries to counsel for the Agent shall be deemed a representation and fairly present warranty by the information required Company to be shownthe Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Offering are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Kaiser Parties Company herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Kaiser Parties Company shall have performed, in all material respects, performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Kaiser Parties shall have conducted the Offering 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 Offering imposed upon them by the OTS and the SEC or any other regulatory authority.
(b) The Registration Statement shall have been declared effective by the SECCommission not later than 5:30 p.m. Eastern Time on the date of this Agreement, or with the OTS Application shall have been approved by Agent’s consent at a later time and date; and at the OTS for mailing prior to the commencement of the Offering and Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Kaiser Parties, or threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Offering shall have been issued or proceedings therefor therefore initiated or, to the knowledge of the Kaiser PartiesCompany’s knowledge, threatened by the OTS, the Commission or any other governmental bodyfederal or state authority.
(cb) At the Closing Date, the Agent shall have received:received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for the Company, in form and substance as attached hereto as Exhibit A. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(1c) The On Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date, of Xxxxxxx & Xxxxxxxxx and/or local Xxxxxx Xxxxx LLP, counsel acceptable to for the Agent, in form and substance satisfactory to the Agent and Agent. In giving such opinion such counsel for the Agent may rely, as to the effect that:
(i) The Holding Company is a stock corporation duly organized and validly existing under all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, with corporate power upon the opinions of counsel satisfactory to the Agent. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and authority its subsidiaries and certificates of public officials.
(d) Each of the executive officers and directors of the Company which are listed on Exhibit C hereto has executed and delivered the lock-up agreements substantially in the form of Exhibit B hereto.
(e) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company in form and substance reasonably satisfactory to own its the Agent’s counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Company and to conduct its business the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as described of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described there has been no material adverse change in the Registration Statement and condition, financial or otherwise, or in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities earnings, capital, properties or business of the Bank Company or the Subsidiaries independently, or of the Company and its Subsidiaries considered as described one enterprise, whether or not arising in the Prospectus are permitted by the rules and regulations ordinary course of the OTSbusiness; all of the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Parties 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 Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member the representations and warranties in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, Section 4 are true and to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination or revocation of the federal deposit 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 Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(viii) The Plan complies correct in all material respects with the Conversion Regulations, the OTS Application has been approved by the OTS same force and the Prospectus has been authorized for use by the OTS effect as though expressly made at and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use as of the Prospectus, Closing Date; (v) the Company has complied in all material respects with all agreements and subject satisfied all conditions on its part to be performed or satisfied at or prior to the satisfaction of any conditions set forth Closing Date and will comply 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 all material respects with all obligations to be satisfied by it after the execution Closing Date; and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus.
(ixvi) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issuedinitiated or, to best the knowledge of the Company, threatened by the Commission or proceedings for that purpose have been instituted or threatenedany state authority.
(xf) The material tax consequences Neither the Company nor the Subsidiaries shall have sustained, since the date of the Offering are latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters.
(xi) The terms and provisions of the Shares conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, and since the forms respective dates as of certificates proposed which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is, in the Agent’s reasonable judgment, sufficiently material and adverse as to be used make it impracticable or inadvisable to evidence proceed with the Offering or the delivery of the Shares are on the terms and in due and proper form the manner contemplated in compliance with applicable lawsthe Prospectus.
(xiig) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Company and its subsidiaries considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Company or its Subsidiaries shall have received from any Governmental Entity any direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a whole; (iii) none of the Company or its Subsidiaries shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the best knowledge of the Company, threatened against the Company, its Subsidiaries or affecting any of the properties thereof wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Company and its Subsidiaries taken as a whole; (v) no Governmental Entity shall have instituted any proceeding for the purpose of enjoining or prohibiting the consummation of the Offering and no statute, rule or regulation shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Offering; and (vi) each of the Series A Shares, the Shares and the Common Shares issuable upon conversion of the Series A Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(h) At the time of the OTS Application, including the Prospectus contained therein, was approved by the OTSexecution of this Agreement, the OTS ApplicationAgent shall have received from BKD, including LLP, the Prospectus contained thereincurrent independent registered public accounting firm for the Company, as amended or supplementeda letter dated such date, complied as in form and substance satisfactory to form in all material respects with the requirements Agent containing statements and information of the Conversion Regulations, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the 1933 Act Regulations financial statements and certain financial information contained in the Registration Statement and the 1934 Act Regulations (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). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the OTS applicationProspectus.
(xiiii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration StatementAgent shall receive a letter dated the Closing Date, including addressed to the Prospectus Agent, confirming the statements made by BKD, LLP in the letter delivered by it pursuant to subsection (as amended or supplementedh) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Regulationsthis Section 8.
(xivj) To such counsel's Actual KnowledgeFINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements, if required.
(k) After the date hereof, there are no legal or governmental proceedings pending or threatened shall not have occurred any of the following: (i) asserting any domestic or international event or act or occurrence has materially disrupted the invalidity of this AgreementUnited States securities market such as to make it, in the Agent’s reasonable opinion, impracticable or inadvisable to proceed with the Offering; (ii) seeking a suspension or limitation in trading in securities generally by the Commission, the New York Stock Exchange or the NASDAQ Stock Market, or any setting of minimum or maximum prices or maximum ranges for trading thereon, or any halting of quotations generally by either of such exchanges or by order of the Commission or any other governmental authority; (iii) a general moratorium on the operations of commercial banks or federal savings and loan associations, or a general moratorium on the withdrawal of deposits from commercial banks or federal savings and loan associations declared by federal or state authorities, or a moratorium in foreign exchange trading by major international banks or persons has been declared; (iv) the engagement by the United States in major hostilities or escalation thereof or the declaration, on or after the date hereof, of a national emergency or war, or (v) a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to prevent proceed with the Offering or the offer, sale or issuance delivery of the Shares or (iii) which are required to be disclosed on the terms and in the manner contemplated in the Registration Statement and the Prospectus, other than those disclosed therein.
(xvl) The information in the Prospectus under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," At or prior to the extent that Closing Date, counsel to the Agent shall have been furnished with such information constitutes matters documents and opinions as they may reasonably require for the purpose of law, summaries enabling them to pass upon the sale of legal matters, documents the Shares as herein contemplated and related proceedings or proceedingsin order to evidence the occurrence or completeness of any of the representations or warranties, or legal conclusionsthe fulfillment of any of the conditions, has been reviewed herein contained; and all proceedings taken by the Company in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent and its counsel.
(m) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of any of the Company and is accurate in all material respects. The descriptions in delivered to the Prospectus of statutes Agent or regulations are accurate summaries to counsel for the Agent shall be deemed a representation and fairly present warranty by the information required Company to be shownthe Agent as to the statements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and hereunder, as to the occurrence of Shares to be delivered at the Closing and Date, are subject, to the Offering are subject extent not waived in writing by the Agent, to the condition that all representations and warranties of the Kaiser Pilgrim Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Kaiser Pilgrim Parties shall have performed, in all material respects, performed all of their its obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) At the Closing Date, the Kaiser Pilgrim Parties shall have conducted the Offering Conversion in all material respects in accordance with the Plan, the Conversion Massachusetts Regulations (except to the extent waived or otherwise approved by the FRB, the Division and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offering Conversion imposed upon them by the OTS and FRB, the SEC Division or any other regulatory authorityapplicable regulator.
(b) The Registration Statement shall have been declared effective by the SEC, Commission and the OTS Application Applications shall have been approved by the OTS for mailing prior to FRB and the commencement Division not later than 5:30 p.m. on the date of this Agreement, or with the Offering Agent’s consent at a later time and date; and at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge of the Kaiser Pilgrim Parties, threatened by the Commission or any state authority authority, and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Offering Conversion shall have been issued or proceedings therefor therefore initiated or, to the knowledge of the Kaiser Pilgrim Parties’ knowledge, threatened by the OTSCommission, the Commission FRB, the Division, or any other governmental bodyregulatory authority.
(c) At the Closing Date, the Agent shall have received:
(1) The received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Xxxx Xxxxxx, special counsel for the Pilgrim Parties, in form and substance as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of Xxxxxxx & Xxxxxxxxx and/or local the Closing Date and addressed to the Agent and for its benefit, of Xxxxx Lovells US LLP (“Xxxxx Lovells”), special counsel acceptable to for the Agent, in form and substance as attached hereto as Exhibit D.
(e) Prior to the mailing of the Prospectus, a blue sky memorandum from Xxxx Xxxxxx relating to the Offering, including Agent’s participation therein, shall have been furnished to the Holding Company with a copy thereof addressed to Agent or upon which Xxxx Xxxxxx shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Pilgrim Parties in form and substance reasonably satisfactory to the Agent and counsel for the Agent Agent’s Counsel, dated as of such Closing Date, to the effect that:
: (i) The Holding Company is they have carefully examined the Prospectus and, in their opinion, at the time the Prospectus became authorized for final use, the Prospectus did not contain any untrue statement of a stock corporation duly organized and validly existing under material fact or omit to state a material fact necessary in order to make the laws statements therein, in light of the United Statescircumstances under which they were made, with corporate power not misleading; (ii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth, including specifically, but without limitation, any material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Pilgrim Parties and authority to own its properties and to conduct its business the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as described of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described there has been no material adverse change in the Registration Statement and condition, financial or otherwise, or in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities earnings, capital, properties or business of the Bank Pilgrim Parties independently, or of the Pilgrim Parties considered as described one enterprise, whether or not arising in the Prospectus ordinary course of business; (iv) the representations and warranties in Section 4 are permitted by true and correct with the rules same force and regulations effect as though expressly made at and as of the OTSClosing Date; all of (v) the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Pilgrim Parties 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 Holding Company and the Bank are complying therewith complied in all material respects.
(iv) The Bank is a member in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, respects with all agreements and satisfied all conditions on their part to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination be performed or revocation of the federal deposit insurance of the Bank are pending satisfied at or threatened.
(v) The MHC is duly organized and validly existing as a federally- chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(viii) The Plan complies comply in all material respects with all obligations to be satisfied by them after the Conversion Regulations, the OTS Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus.
Closing Date; (ixvi) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issuedinitiated or, to the knowledge of the Pilgrim Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose have been instituted are pending or, to the knowledge of the Pilgrim Parties, threatened by the FRB, the Division, or threatenedany other regulatory authority; and (viii) to the best knowledge of the Pilgrim Parties, no person has sought to obtain review of the final action of the FRB, the Division or any other applicable regulator approving the Conversion.
(xg) The material tax consequences None of the Offering are Pilgrim Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters.
(xi) The terms and provisions of the Shares conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, and since the forms respective dates as of certificates proposed which information is given in the Registration Statement and the Prospectus, there shall not have been any Material Adverse Effect that is in the Agent’s reasonable judgment sufficiently material and adverse as to be used make it impracticable or inadvisable to evidence proceed with the Offering or the delivery of the Shares are on the terms and in due and proper form the manner contemplated in compliance with applicable lawsthe Prospectus.
(xiih) At Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations or business of the Pilgrim Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Pilgrim Parties shall have received from the FRB, the Division or the FDIC any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the financial condition, results of operations or business of the Pilgrim Parties taken as a whole; (iii) none of the Pilgrim Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the OTS ApplicationProspectus, including shall be pending or, to the Prospectus contained thereinknowledge of the Pilgrim Parties, was approved threatened against the any of the Pilgrim Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would materially and adversely affect the financial condition, results of operations or business of the Pilgrim Parties taken as a whole; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the OTSPilgrim Parties.
(i) Concurrently with the execution of this Agreement, the OTS ApplicationAgent shall receive a letter from Xxxxxxxxx, including XxxXxxx & Company, P.C., dated as of the Prospectus contained thereindate hereof and addressed to the Agent: (i) confirming that Xxxxxxxxx, XxxXxxx & Company, P.C. is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the MHC as amended or supplementedof March 31, complied 2014, December 31, 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the FRB and any other applicable regulator and the 1933 Act; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the MHC prepared by the MHC, a reading of the minutes of the meetings of the Boards of Directors or Board of Trustees, as applicable, of each of the Pilgrim Parties and consultations with officers of the MHC responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus are not in conformity with the 1933 Act, applicable accounting requirements of the Conversion RegulationsFRB and the Division and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest unaudited interim consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the MHC, other than normal deposit fluctuations for the Bank; or (C) there was any decrease in the total consolidated assets, total loans, the 1933 Act Regulations allowance for loan losses, total deposits or total equity of the MHC at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the 1934 Act Regulations (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). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review performance of the final action procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the OTS approving MHC, which are subject to the OTS applicationinternal controls of the MHC, the accounting system and other data prepared by the MHC, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(xiiij) At the time that the Registration Statement became effective and as of the Closing Date, the Registration StatementAgent shall receive a letter dated the Closing Date, including addressed to the Prospectus Agent, confirming the statements made by Xxxxxxxxx, XxxXxxx & Company, P.C. in the letter delivered by it pursuant to subsection (as amended or supplementedi) of this Section 8, the “specified date” referred to in clause (other ii) of subsection (i) to be a date specified in the letter required by this subsection (j) which for purposes of such letter shall not be more than three business days prior to the financial statementsClosing Date.
(k) At the Closing Date, notes to financial statementsthe Holding Company shall receive a letter from RP Financial, financial tables or other financial LC., dated the Closing Date (i) confirming that said firm is independent of the Pilgrim Parties and statistical data included therein is experienced and expert in the appraisal valuation and area of corporate appraisals within the business plan as to which counsel need express no opinion)meaning of the Massachusetts Conversion Regulations, complied as to form (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the requirements 209 CMR 33.08(3)(a), and (iii) further stating that its opinion of the 1933 Act and aggregate pro forma market value of the 1933 RegulationsHolding Company including the Bank, as most recently updated, remains in effect.
(xivl) To such counsel's Actual KnowledgeAt or prior to the Closing Date, there are no legal or governmental proceedings pending or threatened the Agent shall receive: (i) asserting a copy of the invalidity of this Agreement, letter from the FRB approving the Holding Company Application and the letter from the FRB approving the FRB Conversion Application; (ii) seeking a copy of a letter from the Division approving the Massachusetts Conversion Application; (iii) confirmation that the Commission declared the Registration Statement effective; (iv) a certificate from the Secretary of State of the Commonwealth of Massachusetts evidencing the valid existence and good standing of the MHC; (v) a certificate from the Maryland Department of Assessments & Taxation evidencing the valid existence and good standing of the Mid-Tier; (vi) a certificate from the Division evidencing the good standing of the Bank; (vii) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (viii) a certificate from the FHLBB evidencing the Bank’s membership therein; (ix) a certificate from the Maryland Department of Assessments & Taxation evidencing the good standing of the Holding Company and (x) such other documents and certificates as the Agent may reasonably request.
(m) Subsequent to prevent the date hereof, there shall not have occurred any of the following; (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the Nasdaq Stock Market or by order of the Commission or any other governmental authority; (ii) a general moratorium on the operations of federal or state chartered depository institutions or a general moratorium on the withdrawal of deposits from federal or state chartered depository institutions declared by federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war or a material decline in the price of equity or debt securities, if the effect of such declaration or decline, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the offer, sale or issuance delivery of the Shares or (iii) which are required to be disclosed on the terms and in the manner contemplated in the Registration Statement and the Prospectus, other than those disclosed therein.
(xvn) The information in the Prospectus under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," At or prior to the extent that Closing Date, counsel to the Agent shall have been furnished with such information constitutes matters documents and opinions as they may reasonably require for the purpose of law, summaries enabling them to pass upon the sale of legal matters, documents the Shares as herein contemplated and related proceedings or proceedingsin order to evidence the occurrence or completeness of any of the representations or warranties, or legal conclusionsthe fulfillment of any of the conditions, has been reviewed herein contained; and all proceedings taken by the Pilgrim Parties in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Agent or its counsel.
(o) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent or to counsel for the Agent. Any certificate signed by an officer of any of the Pilgrim Parties and delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such counsel and is accurate in all material respects. The descriptions in Pilgrim Party to the Prospectus of statutes or regulations are accurate summaries and fairly present Agent as to the information required to be shownstatements made therein.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent ------------------------------------- hereunder and the occurrence of the Closing and the Offering Reorganization are subject to the condition that all representations and warranties and other statements of the Kaiser Primary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct, the condition that the Kaiser 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) At the Closing Date, the Kaiser Parties The Conversion shall have conducted the Offering 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 Offering imposed upon them been approved by the OTS Division and the SEC or any other regulatory authority.
(b) FDIC. The Registration Statement shall have been declared effective by the SECCommission, the OTS BHC Application shall have been approved by the OTS for mailing prior to the commencement of the Offering FRB, 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 therefore initiated or, to the knowledge any of the Kaiser Primary Parties' 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 Offering Reorganization shall have been issued or proceedings therefor therefore initiated or, to the knowledge any of the Kaiser Primary Parties' knowledge, threatened by the OTSDivision, the Commission FDIC, the FRB, the Commission, or any other governmental body.
(cb) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxxxxx Mxxxxxx Xxxxxx & Xxxxxxxxx Axxxxxx LLP, and/or local counsel acceptable to the Agent, Agent in form and substance satisfactory to the Agent and counsel for the Agent as set forth in Exhibit C hereto. The opinion may be limited to the effect that:
(i) The Holding Company is a stock corporation duly organized and validly existing under matters governed by the laws of the United States and the Commonwealth of Massachusetts. In rendering such opinion regarding Massachusetts law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with corporate power the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(2) The letter of Mxxxxxx Xxxxxx & Aguggia LLP in form and authority substance to own its properties and to conduct its business as described in the effect that during the preparation of the Registration Statement and the Prospectus, Mxxxxxx Xxxxxx & Axxxxxx LLP participated in conferences with certain officers of and is duly qualified other representatives of the Primary Parties, counsel to transact business the Agent, representatives of the independent public accounting firm for the Primary Parties and is in good standing in each jurisdiction in representatives of the Agent at which the conduct contents of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing federally-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement related matters were discussed and perform its obligations hereunder; has considered the activities of the Bank as described in the Prospectus are permitted by the rules and regulations of the OTS; all of the capital stock of the Bank outstanding is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Holding Company, free and clear, to such counsel's Actual Knowledge, of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to subsidiaries of a savings association holding company that is a federal corporation. To the best of such counsel's knowledge, each of the Kaiser Parties 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 Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member in good standing of the FHLB - San Francisco. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's Actual Knowledge (as hereinafter defined), no proceedings for the termination or revocation of the federal deposit 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 Offering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock issued to the MHC have been duly and validly authorized for issuance will be fully paid and nonassessable; (c) the Shares matters required 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 duly and validly issued and fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the Articles of Incorporation, Charter or Bylaws of any of the Kaiser Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's Actual Knowledge, upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vii) The Kaiser Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Kaiser Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Kaiser Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualifications that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(viii) The Plan complies in all material respects with the Conversion Regulations, the OTS Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and SEC, and, to such counsel's Actual Knowledge, no action has been taken and, to such counsel's Actual Knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offering or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the completion of the Offering, except as may be required under the securities or blue sky laws of various jurisdictions as to which no opinion need be rendered. To such counsel's Actual Knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the OTS Application or the Prospectus.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's Actual Knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or proceedings for that purpose have been instituted or threatened.
(x) The material tax consequences of the Offering are set forth in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering." The information in the Prospectus under the caption "The Stock Offering - Effects of the Stock Offering - Tax Effects of the Stock Offering" has been reviewed by such counsel and fairly described such opinions rendered by such counsel and RSM XxXxxxxxx, Inc. to the Kaiser Parties with respect to such matters.
(xi) The terms and provisions of the Shares conform in all material respects 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 are in due and proper form in compliance with applicable laws.
(xii) At the time the OTS Application, including the Prospectus contained therein, was approved by the OTS, the OTS Application, including the Prospectus contained therein, as amended or supplemented, complied as to form in all material respects with the requirements of the Conversion Regulations, the 1933 Act Regulations and the 1934 Act Regulations (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included stated therein and the appraisal valuation and statements contained therein and, although (without limiting the business plan as opinions provided pursuant to which counsel need express no opinionSection 9(b)(1). To such counsel's knowledge, no person ) Mxxxxxx Xxxxxx & Aguggia LLP has sought to obtain regulatory or judicial review of the final action of the OTS approving the OTS application.
(xiii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Regulations.
(xiv) To such counsel's Actual Knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Offering or the offer, sale or issuance of the Shares or (iii) which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xv) The information in the Prospectus under the captions "Summary - The Stock Offering," "Risk Factors," "How We Intend to Use the Proceeds," "Our Policy Regarding Dividends," "The Stock Offering," "Management," "How We Are Regulated," "Taxation" "Restrictions on Acquisition of K-Fed Bancorp and Kaiser Federal Bank" and "Description of Capital Stock of K-Fed Bancorp," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries and fairly present the information required to be shown.not independently
Appears in 1 contract
