Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following conditions: (a) At the date hereof, Agent shall receive an opinion of counsel of the Company that: (i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus; (ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith; (iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy; (iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown; (v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; (vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and (vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding. (b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby. (c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon. (d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering. (e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 4 contracts
Sources: Sales Agency Agreement (Cornerstone Ministries Investments Inc), Sales Agency Agreement (Cornerstone Ministries Investments Inc), Sales Agency Agreement (Cornerstone Ministries Investments Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statementsShares, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements certificates of officers and directors of the Company and statements certificates of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statementscertificates, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements certificates signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 3 contracts
Sources: Sales Agency Agreement (Wellstone Communities Inc), Sales Agency Agreement (Wellstone Communities Inc), Sales Agency Agreement (Wellstone Communities Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the The obligations of the Agent as provided herein shall be hereunder are subject to (i) the accuracy of the representations and warranties contained in Section 2 hereof as on the part of the Company on the date hereof, any applicable date referred to the accuracy in Section 4(l), each Filing Date, each Applicable Time and as of the statements of officers and directors of the Company made pursuant to the provisions hereofeach Settlement Date, to (ii) the performance by the Company of their its obligations hereunder and to (iii) the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company thatadditional conditions precedent:
(i) No stop order with respect to the Company is incorporated, validly existing and in good standing effectiveness of any one of the Registration Statement shall have been issued under the laws Securities Act or proceedings initiated under Section 8(d) or 8(e) of State the Securities Act and no order directed at any document incorporated by reference therein and no order preventing or suspending the use of Georgia the Prospectus has been issued by the Commission, and with full power and authority to own its properties and conduct its business as described no suspension of the qualification of the Shares for offering or sale in the Prospectus;
(ii) any jurisdiction, or to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf or the Agent of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions initiation or threatening of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental any proceedings pending or, to the best knowledge for any of such counselpurposes, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceedingoccurred; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(vii) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Companyall amendments thereto, or to such counselmodifications thereof, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreementif any, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, and the General Disclosure Package 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 were are made, not misleading; .
(b) No material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition, net worth or prospects of the Company shall occur or become known and no transaction which is material and unfavorable to the Company shall have been entered into by the Company.
(c) The Company shall furnish or cause to be furnished to the Agent, on every date specified in Section 4(m) hereof, opinions of External Company Counsel and Internal Company Counsel, in each case addressed to the Agent, and dated as of such date, and in form satisfactory to the Agent and its counsel, substantially in the form of Exhibit ▇-▇, ▇-▇ and Exhibit B, respectively, attached hereto (subject, in each case, to limitations, qualifications, exceptions and assumptions satisfactory to the Agent).
(d) At the dates specified in Section 4(n) hereof, the Agent shall have received from the Accountants letters dated the date of delivery thereof and addressed to the Agent in form and substance satisfactory to the Agent and its counsel.
(e) The Company will deliver to the Agent a certificate, prior to the earlier of (x) four business days following each Filing Date or (y), to the extent there shall be an Applicable time on or following such Filing Date, prior to such Applicable Time, (each, a “Certificate Date”), of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the Certificate Date, (ii) since the date Company has performed or shall perform such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, and (iii) the Prospectus became authorized for final use, no event has occurred which should have been conditions set forth in an paragraphs (a) and (b) of this Section 5 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares sold during the period to which the certificate relates have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Applicable Time or related Settlement Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(g) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the Settlement Date.
(h) The Company shall have furnished to the Agent such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus as of the Settlement Date as the Agent may reasonably request.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) The NASD shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(k) No amendment or supplement to the Prospectus which has not been so set forthRegistration Statement or Prospectus, including specificallydocuments deemed to be incorporated by reference therein, but without limitation, any event that has or may have a material adverse effect on shall be filed to which the Company, Agent objects in writing.
(l) Between the time of execution of this Agreement and the conditions set forth in clauses time of sale of Shares through the Agent, as the case may be, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering any review or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they arepossible change that does not indicate an improvement, in the reasonable opinion rating accorded any securities of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty guaranteed by the Company to Agent by any “nationally recognized statistical rating organization,” as to that term is defined in Rule 436(g)(2) under the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillmentSecurities Act.
Appears in 2 contracts
Sources: Atm Equity Offering Sales Agreement (Annaly Capital Management Inc), Atm Equity Sales Agreement (Annaly Capital Management Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "“threatened" ” unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates Bonds and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates Bonds and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "“threatened" ” unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's ’s best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' ’ statements, there has been no breach of the Company's ’s articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("“Accord"”) of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "“threatened" ” unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding. .
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in ill the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's ’s best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates Bonds and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's ’s certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's ’s obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 2 contracts
Sources: Sales Agency Agreement (Cornerstone Ministries Investments Inc), Sales Agency Agreement (Cornerstone Ministries Investments Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their its obligations hereunder and to the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(cb) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and selected by the Company shall have agreed uponCompany.
(dc) Upon the completion of the Offering, upon request, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each the President has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 7 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(ed) Upon the completion of the Offering, Agent shall receive, among other documents, upon request, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing existence of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements certificates signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 2 contracts
Sources: Sales Agency Agreement (Wellbrook Properties, Inc.), Sales Agency Agreement (Wellbrook Properties, Inc.)
Conditions of Agent’s Obligations. Except as may be waived in writing by AgentThe Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent as provided herein shall be hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained in Section 2 hereof as of the date hereofhereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company Company, the MHC and the Bank of their obligations hereunder hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the date hereof, Agent shall receive an opinion have received:
(1) The favorable opinion, dated as of Closing Time, of Malizia Spidi & Fisch, PC, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇y, ▇▇▇ MHC and the Bank, in form and substance satisfactory to counsel of for the Company Agent, to the effect that:
(i) the The Company has been duly organized and is incorporated, validly existing and in good standing as a federal stock holding company chartered under the laws of State the United States of Georgia America; the MHC has been duly organized and with is validly existing as a federal mutual holding company chartered under the laws of the United States of America; the Bank has been duly organized and is validly existing as a federal savings bank chartered under the laws of the United States of America.
(ii) Each of the Company, the MHC and the Bank has full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect Registration Statement and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company Prospectus and has been duly executed to enter into and delivered on behalf of the Company. This Agreement is enforceable in accordance with perform its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration obligations under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(ciii) Upon the completion of the Offering, in the reasonable opinion Each of the Company, (i) there shall the MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in good standing under the laws of the United States of America, in the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have been no a material adverse change in effect upon the condition financial condition, results of operations, business affairs or affairsprospects of the Company, financial or otherwisethe MHC and the Bank, considered as one enterprise.
(iv) The authorized capital stock of the Company from that as consists of 75,000,000 shares of Common Stock and 25,000,000 shares of preferred stock, par value $0.10 per share, and the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition issued and outstanding capital stock of the Company is 10,000 shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Offerings and the issuance of the MHC Shares, the issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus other than transactions referred to or contemplated therein under "Capitalization."
(v) The authorized capital stock of the Bank consists of 75,000,000 shares of common stock, par value $0.10 per share, and transactions 25,000,000 shares of serial preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Bank is _____ shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and state securities laws.
(vi) The Securities and the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and MHC Shares shall have been registered or registered duly and validly authorized for offering issuance and sale sale; the Securities, when issued and delivered by the Company under pursuant to the Blue Sky Laws Plan against payment of such jurisdictions the consideration calculated as Agent set forth in the Plan, will be duly and the Company shall have agreed uponvalidly issued and fully paid and nonassessable.
(dvii) Upon the completion The issuance of the OfferingSecurities and the MHC Shares is not subject to preemptive or other similar rights arising by operation of law or, Agent shall receive a certificate of to such counsel's knowledge after due inquiry, otherwise.
(viii) The Company is issuing the President of Securities and the MHC Shares in compliance with all conditions imposed upon the Company, dated the MHC and the Bank by the OTS under the terms of their written approval or notice of intention not to object, as applicable.
(ix) Each of the completion date Company and the MHC is registered as a savings and loan holding company under the Home Owners Loan Act.
(x) The Bank is a member in good standing of the Offering, that states: (i) each has carefully examined the Prospectus Federal Home Loan Bank of Boston and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xi) Each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, and it does not contain an untrue statement of is duly qualified as a material fact or omit foreign corporation to state a material fact necessary transact business and is in order to make the statements thereingood standing in each jurisdiction in which such qualification is required, in light whether by reason of the circumstances under which they were madeownership or leasing of property or the conduct of business, except where the failure to so qualify would 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 event that has or may have a material adverse effect on upon the financial condition, results of operations, business affairs or prospects of the Company, the MHC, the Bank and the conditions set forth Subsidiaries, considered as one enterprise; the activities of each Subsidiary are permitted for subsidiaries of a federally chartered savings bank, in clauses (ii) the case of the Bank, and (iii) a federally chartered stock holding company, in the case of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued the Company, by the Commission to suspend the Offering or the effectiveness rules, regulations, resolutions and practices of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the CommissionOTS; and, (iv) all of the representations issued and warranties contained in Section 2 outstanding capital stock of this Agreement are true each Subsidiary has been duly authorized and correctvalidly issued, with the same force is fully paid and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified non-assessable and is owned by the Georgia Secretary MHC or the Bank, as the case may be, directly, free and clear of State. All such opinionsany security interest, statementsmortgage, letters and documents shall be in compliance with the provisions hereof only if they arepledge, in the reasonable opinion of Agent and its counsellien, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilledencumbrance, or may extend the time of their fulfillmentlegal or equitable claim.
Appears in 1 contract
Conditions of Agent’s Obligations. Except as may be waived in writing by The obligation of any Agent, as agent of the obligations Company, at any time ("Solicitation Time") to solicit offers to purchase the Securities and the obligation of any offeree to purchase Securities or of any Agent to purchase Securities as provided herein principal, pursuant to any Terms Agreement, shall in each case be subject subject, in such offeree's or Agent's discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company herein (and, in the case of an obligation of an Agent under a Terms Agreement, contained in Section 2 hereof or incorporated in such Terms Agreement by reference) are true and correct at and as of the Commencement Date and any applicable date hereofreferred to in Section 4(k) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, and at and as of such Solicitation Time or Time of Delivery, as the case may be, the condition that on or prior to such Solicitation Time or Time of Delivery, as the accuracy of the statements of officers and directors of case may be, the Company made pursuant to the provisions hereof, to the performance by the Company shall have performed all of their its obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) With respect to any Securities sold at or prior to such Solicitation Time or Time of Delivery, as the Company is incorporatedcase may be, validly existing and in good standing the Prospectus as amended or supplemented (including the Pricing Supplement) with respect to such Securities shall have been filed with the Commission pursuant to Rule 424(b) under the laws of State of Georgia Act within the applicable time period prescribed for such filing by the rules and with full power regulations under the Act and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv4(a) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to thereinhereof; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in stop 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or suspending the effectiveness of the Prospectus and, to the best knowledge of such officers, Registration Statement shall have been issued and shall remain in effect and no action proceeding for such purposes has that purpose shall have been instituted initiated or threatened by the Commission; and, and (iviii) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made requests for additional information on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order part of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance have been complied with the provisions hereof only if they are, in to the reasonable opinion satisfaction of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to such Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.;
Appears in 1 contract
Sources: Distribution Agreement (Delmarva Power & Light Co /De/)
Conditions of Agent’s Obligations. Except as may be waived in writing by AgentThe Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent as provided herein shall be hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained in Section 2 hereof as of the date hereofhereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company Company, the MHC and the Bank of their obligations hereunder hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the SEC, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the date hereof, Agent shall receive an opinion have received:
(1) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel of for the Company Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a federal stock corporation under the laws of the United States, and the MHC has been duly incorporated and is validly existing as a federal mutual holding company under the laws of the United States.
(ii) Each of the Company and the MHC has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) Each of the Company and the MHC is incorporatedduly qualified as a foreign corporation to transact business and is in good standing in the States of Georgia and Alabama and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Bank's subsidiaries, considered as one enterprise.
(iv) Upon consummation of the Reorganization, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vii) The Bank has been at all times since 1954 and prior to the Closing Time duly organized and validly existing under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, has become duly organized and validly existing under the laws of the United States of America as a federally chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(viii) The Bank is a member of the Federal Home Loan Bank of Atlanta and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(ix) Each direct and indirect subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of State the jurisdiction of Georgia and with its incorporation, has full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Prospectus;
(ii) Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the best knowledge failure to so qualify would have a material adverse effect upon the financial condition, results of such counseloperations or business of the Company, all such licensesthe MHC, permits and other governmental authorizations are in full force and effect the Bank and the Company is complying in Bank's subsidiaries, taken as a whole; the activities of each such subsidiary are permitted to subsidiaries of a savings association holding company and of a federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS; all material respects therewith;
(iii) this Agreement of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by all necessary corporate action on the part Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) Upon consummation of the Company Reorganization, all of the issued and has been duly executed outstanding capital stock of the Bank when issued and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except pursuant to the extent that Plan against payment of consideration calculated as set forth in the provisions of Section 7 Plan and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The OTS has duly approved the Holding Company Application and the MHC Application and no action is pending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the MHC Application comply with the senior executive officers applicable requirements of the OTS, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge and information, truthful, accurate and complete; the Company is duly authorized to become a savings association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan; and the MHC is duly authorized to become a federal mutual holding company and is duly authorized to own a majority of the issued and outstanding capital stock of the Company.
(xii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and an investigation the Bank, and this Agreement constitutes the legal, valid and binding agreement of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management each of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed MHC and the description Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the Prospectus effect of such statutesbankruptcy, regulations, contracts insolvency or similar laws and other documents therein described are accurate summaries and fairly present the information required to be shown;
availability of equitable remedies); (vB) the Registration Statement has been registered by the Commission; and no further approval of will not result in any other governmental authority is required for the issuance and sale violation of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws provisions of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by charter or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management by-laws of the Company, the MHC, the Bank or to such counselany of the Bank's subsidiaries; and, a present intention to initiate such litigation or proceeding;
(viC) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall will not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of of, or default (or an under, and no event has occurred which, with notice or lapse of time or both, would constitute a default) default under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or of any material lien, charge or other encumbrance encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and the Bank's subsidiaries considered as one enterprise, upon any of the properties property or assets of the Company Company, the MHC, the Bank or the Bank's subsidiaries pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bondmortgage, debentureloan agreement, note, lease or other instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subjectCompany, or any governmental license or permit; nor will any of such actions violate any lawthe MHC, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (Bank or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company Bank's subsidiaries is a party or by which any of them or any of their respective assets or properties may be bound, or to which any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation property or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management assets of the Company, the MHC, the Bank or to their counsel, a present intention to initiate such litigation or proceedingthe Bank's subsidiaries is subject.
(bxiii) Counsel The Prospectus has been duly authorized by the OTS for Agent shall have been furnished final use pursuant to the OTS Regulations and no action is pending, or to the best of such documents as they reasonably may require for counsel's knowledge, is threatened, by the purpose of enabling them OTS to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated herebyrevoke such authorization.
(cxiv) Upon The Registration Statement is effective under the completion Securities Act and no stop order suspending the effectiveness of the OfferingRegistration Statement has been issued under the Securities Act or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the SEC.
(xv) No further approval, authorization, consent or other order of any public board or body is required in connection with the reasonable opinion execution and delivery of this Agreement, the issuance of the Company, (i) there shall have been no material adverse change in Securities and the condition or affairs, financial or otherwise, consummation of the Company from that Reorganization, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xvi) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the latest date as of which such condition is set forth Securities Act and the Securities Act Regulations and the OTS Regulations.
(xvii) The Common Stock conforms to the description thereof contained in the Prospectus, except as referred and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xviii) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank or the Bank's subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of , and all pending legal or governmental proceedings to which the financial condition Company, the MHC, the Bank or any of the Company Bank's subsidiaries is set forth a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xix) The information in the Prospectus other than transactions referred to or contemplated therein under "Our Policy Regarding Dividends," "Business of CharterBank - Legal Proceedings," "Regulation of CharterBank and transactions by Charter Financial - Taxation," "The Reorganization and the Company in the ordinary course Offering - Effects of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or Reorganization," "- Liquidation Rights," and "- Tax Aspects," "Restrictions on Acquisitions of Charter Financial and CharterBank" and "Description of Capital Stock of Charter Financial," to the Company's best knowledge threatened against the Company extent that it constitutes matters of law, summaries of legal matters, documents or affecting any of their respective assetsproceedings, wherein an unfavorable decisionor legal conclusions, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued reviewed by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) them and is complete and accurate in all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offeringmaterial respects.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 1 contract
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the The obligations of Agent the several Agents to solicit offers for the Securities, as provided herein herein, shall be subject subject, in their discretion, to the continuing accuracy of the representations and warranties of the Company contained herein and in Section 2 hereof each certificate and document contemplated under this Agreement to be delivered to you, as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their its obligations hereunder hereunder, and to the following conditions:
(a) At As of the date hereof, Agent you shall receive an have received the favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., a Wisconsin service corporation, counsel for the Company, dated the date of delivery, addressed to the Agents, and in form and scope satisfactory to counsel for the Agents, with reproduced copies or signed counterparts thereof for each of the Company Agents, to the effect that:
(i) the The Company has been duly incorporated and is incorporated, validly existing and as a corporation in good standing (meaning it has filed its most recent annual report, paid any applicable state taxes and fees, and has not filed articles of dissolution) under the laws of the State of Georgia and Wisconsin, with full the corporate power and authority to own its properties and conduct its business as described in the ProspectusProspectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the Prospectus as amended or supplemented;
(iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(iv) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any jurisdiction;
(v) Each Subsidiary is validly existing as a state-chartered bank or corporation, as the case may be, in good standing under the laws of the jurisdiction of its incorporation; all of the issued shares of capital stock of each Subsidiary are owned of record by the Company, directly or indirectly, free and clear of any perfected security interests and, to the best knowledge of such counsel, all such licensesany other liens, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewithencumbrances, equities or claims;
(iiivi) this Agreement has been duly authorized by all necessary corporate action on the part of the Company To such counsel's knowledge and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except other than as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Companythere is no legal, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described proceeding, formal or disclosed in the Prospectus which are not so described informal, pending or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation threatened to which the Company or any of its subsidiaries is a party or by to which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach property of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as its subsidiaries is subject which is reasonably likely to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken as a whole;
(ivvii) the Certificates This Agreement has been duly authorized, executed and Shares shall have been registered or registered for offering and sale delivered by the Company under and constitutes the Blue Sky Laws of such jurisdictions as Agent legal, valid and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President binding obligation of the Company, dated and is enforceable against the Company on its terms, except insofar as the enforceability of the completion date indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws;
(viii) The Securities have been duly authorized and, when duly executed, authenticated, issued and delivered by the Company, will constitute valid, legally binding and enforceable obligations of the Offering, that states: (i) each has carefully examined Company entitled to the benefits provided by the Indenture; and the Indenture conforms and the Securities will conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented;
(ix) The Indenture has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, and the ProspectusIndenture has been duly qualified under the Trust Indenture Act;
(x) The issue and sale of the Securities, the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and any applicable Terms Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or entitle any party to terminate or call a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or to which the Company or the Subsidiaries is bound or to which the property or assets of the Company or the Subsidiaries are subject, nor will such action result in any violation of the provisions of the Articles of Incorporation or the By-Laws of the Company or any material federal or State of Wisconsin statute or any material order, rule or regulation of any federal or State of Wisconsin court or governmental agency or body identified to such counsel by the Company as having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(xi) No consent, approval, authorization, order, registration or qualification of or with any federal or State of Wisconsin court or governmental agency or body is required for the solicitation of offers to purchase Securities, the issue and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement, any applicable Terms Agreement, or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and the rules and regulations thereunder and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or "blue sky" laws in connection with the distribution of the Securities in the manner contemplated hereby;
(xii) The documents incorporated by reference in the Prospectus (other than the financial statements, schedules, loan performance data, capital ratios and other financial and statistical data therein or excluded therefrom, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and it does not contain the rules and regulations of the Commission thereunder; and they have no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(xiii) To the knowledge of such counsel, any contract, agreement, instrument, lease, license, arrangement, or understanding required to be described in the Registration Statement or the Prospectus has been properly described therein. To the knowledge of such counsel, any contract, agreement, instrument, lease, or license required to be filed as an exhibit to the Registration Statement has been filed with the Commission as an exhibit to or has been incorporated as an exhibit by reference into the Registration Statement;
(xiv) To the knowledge of such counsel after due inquiry, at the time of the filing of the Registration Statement and at all times thereafter, the Company satisfied any and all conditions for use of Form S-3 under the forms, rules and regulations of the Commission as in effect prior to October 21, 1992; and
(xv) The Registration Statement is effective under the Act, and to the knowledge of such counsel, no Stop Order has been issued and no proceeding for that purpose has been instituted or threatened. The Registration Statement and the Prospectus as amended and supplemented and any further amendments and supplements thereto made by the Company prior to the date of such opinion (other than the financial statements, schedules, loan performance data, capital ratios and other financial and statistical data therein or excluded therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; they have no reason to believe that, as of the effective date, the Registration Statement or any further amendment or supplement thereto made by the Company prior to the date of such opinion (other than the financial statements, schedules, loan performance data, capital ratios and other financial and statistical data therein or excluded therefrom, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or that, as of the date of such opinion, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the date of such opinion (other than the financial statements, schedules, loan performance data, capital ratios and other financial and statistical data therein or excluded therefrom, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed. In rendering such opinion, (A) for purposes of paragraphs (vii), (viii) and (ix) above, regarding the validity, binding nature and enforceability of this Agreement, the Indenture and the Securities, such counsel may assume that the laws of the State of New York are identical to the laws of the State of Wisconsin; (iiB) as to matters of fact, such counsel may rely, to the extent they deem proper, on certificates of responsible officers of the Company and public officials; and (C) for purposes of paragraphs (vii), (viii) and (ix) above, with respect to the enforceability and binding nature of the Agreement, Securities and Indenture, such counsel's opinions are subject to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(b) On or prior to the date hereof, the Agents shall have been furnished such information, documents, certificates, and opinions as they may reasonably require for the purpose of enabling them to review the matters referred to in Section 7(a), and in order to evidence the accuracy, completeness, or satisfaction of any of the representations, warranties, covenants, agreements, or conditions herein contained, or as you may reasonably request.
(c) On the date hereof, you shall have received a certificate of the President, any Vice President or Treasurer or Assistant Treasurer or any other authorized officer of the Company, dated as of the date hereof, to the effect that the signer of such certificate has examined the Registration Statement, the Prospectus and this Agreement and that to the best of his or her knowledge (i) since the date respective dates as of which information is given in the Prospectus became authorized for final useRegistration Statement and the Prospectus, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which there has not been so set forthany material adverse change in the financial condition, including specifically, but without limitation, earnings or cash flow of the Company and its subsidiaries considered as one enterprise or any event that has or may development reasonably likely to have a material adverse effect on the Companyfinancial condition of the Company and its subsidiaries considered as one enterprise, and whether or not arising in the conditions ordinary course of business, except as set forth or contemplated in clauses the Prospectus, as supplemented or amended, (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the other representations and warranties of the Company contained in Section 2 of this Agreement are true and correct, correct in all material respects with the same force and effect as though expressly made at and as of the date of such certificate, (iii) the Company has performed or complied with all material agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, (iv) there is no legal or governmental proceeding pending or, to the best of such officer's knowledge, threatened, which is required to be disclosed in the Registration Statement other than any disclosed therein and (v) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission.
(d) As of the date hereof, you shall have received a letter, addressed to the Agents, and in form and substance satisfactory to you, with reproduced copies or signed counterparts thereof for each of the Agents, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the date of delivery:
(i) confirming that they are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission;
(ii) stating that, in their opinion, the audited financial statements included or incorporated by reference in each prospectus supplement (the "Prospectus Supplement") which shall be filed as a supplement to the Prospectus and reported on by them (including but not limited to the audited financial statements contained in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2001) comply in form in all material respects with the accounting requirements of the Exchange Act and the related published rules and regulations of the Commission thereunder that apply to a prospectus filed in connection with a registration statement on Form S-3 under the Act (except that certain supporting schedules are omitted);
(iii) based upon a reading of the latest unaudited financial statements made available by the Company, the procedures of the AICPA for a review of interim financial information as described in Statement of Auditing Standards No. 71, reading of minutes and inquiries of certain officials of the Company who have responsibility for financial and accounting matters and certain other limited procedures requested by the Underwriters and described in detail in such letter, nothing has come to their attention that causes them to believe that the information included under the headings "Summary of Prospectus Supplement," "Ratio of Earnings to Fixed Charges" and "Description of Notes" is not in conformity with the disclosure requirements of Regulation S-K that apply to a prospectus as filed in connection with a registration statement on Form S-3 under the Securities Act;
(iv) based upon the procedures detailed in such letter with respect to the period subsequent to the date of the completion last available balance sheet, including reading of the Offering.
(e) Upon the completion minutes and inquiries of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director certain officials of the Company who have responsibility for financial and delivered accounting matters, nothing has come to Agent their attention that causes them to believe that (A) at a specified date not more than three business days prior to the date of such letter, there was any change in capital stock, increase in long-term debt or decrease in net current assets as compared with the amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus Supplement; (B) for the period from December 31, 2001 to counsel a specified date not more than three business days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in net sales, income from operations, except in all instances for Agent changes, increases or decreases that the Prospectus Supplement discloses have occurred or which are set forth in such letter, in which case the letter shall be deemed a representation and warranty accompanied by an explanation by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.significance thereof unless
Appears in 1 contract
Sources: Selling Agent Agreement (Marshall & Ilsley Corp/Wi/)
Conditions of Agent’s Obligations. Except as may be waived in writing by AgentThe Company, the MHC, the Mid-Tier the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent as provided herein shall be hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC, the Mid-Tier and the Bank herein contained in Section 2 hereof as of the date hereofhereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company Company, the MHC, the Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Company Company, the MHC, the Mid-Tier and the Bank of their obligations hereunder hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the SEC, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commissioner, the FDIC, the FRB, the OTS or any state securities or Blue Sky authority, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the date hereofClosing Time, the Agent shall receive an opinion of counsel have received:
(1) The favorable opinion, dated as of the Company Closing Time, of Lord, Bissell & Brook, LLP, counsel for the Company, the MHC, the Mid-Tier and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own, lease and operate its properties and to conduct its operations as described in the Registration Statement and Prospectus.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the Commonwealth of Massachusetts and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify in any such other jurisdiction would not have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiaries taken as a whole (a “Material Adverse Effect”).
(iv) Upon consummation of the Conversion, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under “Capitalization” and to our knowledge no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities and the Foundation Shares have been duly and validly authorized for issuance and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or, in the case of the Foundation Shares, issued and delivered by the Company pursuant to the Plan against payment of the par value thereof, will be duly and validly issued and fully paid and nonassessable.
(vi) The issuance of the Securities and the Foundation Shares is incorporated, not subject to preemptive or other similar rights arising by operation of law.
(vii) The Bank is validly existing and in good standing under the laws of State the Commonwealth of Georgia and Massachusetts as a Massachusetts-chartered stock savings bank, with full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.
(viii) Immediately prior to the Closing Time, the MHC and the Mid-Tier were validly existing and in good standing under the laws of the Commonwealth of Massachusetts and, at Closing Time, shall cease to exist.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of Boston and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Each Subsidiary of the Bank is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect; the activities of each Subsidiary as described in the Prospectus as of the date hereof and prior to the Closing Time, are permitted to subsidiaries of a bank holding company and of a Massachusetts-chartered savings bank by the rules, regulations, resolutions and practices of the FRB, the Commissioner and the FDIC; all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned of record by the Bank, directly or through subsidiaries. The activities of each Subsidiary of the Company following the Conversion are permitted to subsidiaries of a savings and loan holding company and of a Massachusetts-chartered savings bank by the rules, regulations, resolutions and practices of the OTS, the Commissioner and the FDIC.
(xi) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus;; the Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Part 574 as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval of the Massachusetts Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Time; and the Foundation Shares to be issued to the Foundation have been registered pursuant to the Registration Statement.
(iixii) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the best Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized, validly issued, fully paid and nonassessable, and all such capital stock will be owned of record by the Company.
(xiii) At or prior to the Closing, the OTS has approved the Holding Company Application, the Commissioner has approved the Massachusetts Application, the FDIC has approved the FDIC Merger Application and no action is pending, or to the knowledge of such counsel, threatened respecting the Holding Company Application, the Massachusetts Application, the FDIC Merger Application, the Conversion or the acquisition by the Company of all of the Bank’s issued and outstanding capital stock; the Holding Company Application complies in all material respects as to form with the applicable requirements of the OTS, the Massachusetts Application complies in all material respects as to form with the applicable requirements of the Commissioner and the FDIC Merger Application complies in all material respects as to form with the applicable requirements of the FDIC, except in each case as compliance therewith has been specifically waived in writing; the Holding Company Application, the Massachusetts Application and the FDIC Merger Application include all documents required to be filed as exhibits thereto, and are, to the knowledge of such licensescounsel, permits truthful, accurate and other governmental authorizations are in full force and effect complete; and the Company is complying in duly authorized to become a savings and loan holding company and is duly authorized to own all material respects therewith;of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(iiixiv) The execution and delivery of this Agreement has Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (A) have been duly and validly authorized by all necessary corporate action on the part of the Company Company, the MHC, the Mid-Tier and has been duly executed the Bank, and delivered on behalf this Agreement constitutes the legal, valid and binding agreement of each of the Company. This Agreement is , the MHC, the Mid-Tier and the Bank, enforceable in accordance with its terms against the Companyterms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the extent that effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectuscertificate of incorporation, based solely on conferences with the senior executive officers of the Companyorganization certificate, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or charter, as the case may be, or bylaws of the Company, nor the MHC, the Mid-Tier or the Bank or any of the Subsidiaries; and (C) to the knowledge of such counsel, will not conflict with or constitute a breach of of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Mid-Tier, the Bank or the Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Mid-Tier, the Bank or the Subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Mid-Tier, the Bank or the Subsidiaries is subject, that, individually or in the aggregate, would have a Material Adverse Effect.
(xv) The Prospectus has been duly authorized by the Commissioner for final use pursuant to the Conversion Regulations and no action is pending, or an to the knowledge of such counsel, is threatened, by the Commissioner to revoke such authorization.
(xvi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the knowledge of such counsel, proceedings therefor initiated or threatened by the SEC.
(xvii) No further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Securities and the consummation of the Conversion except as may be required under the securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xviii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and appraisal, financial and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations.
(xix) The Common Stock conforms in all material respects to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xx) To the knowledge of such counsel, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Mid- Tier, the Bank or the Subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xxi) The information in the Prospectus under the captions “Federal and State Taxation,” (with respect to the federal taxation only), “Regulation and Supervision”, “The Conversion and the Offering”, “The Legacy Banks Foundation”, “Description of Capital Stock of Legacy Bancorp”, “Description of Legacy Banks Stock,” and “Restrictions on Acquisition of Legacy Bancorp and Legacy Banks” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
(xxii) To such counsel’s knowledge: (i) there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, (ii) the descriptions thereof or references thereto are correct, and (iii) no default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation due performance or imposition or observance of any material lienobligation, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, covenant or condition contained in any contract, indenture, bondmortgage, debentureloan agreement, note, lease or other instrument so described, referred to or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceedingfiled.
(bxxiii) Counsel for Agent shall The Plan and the establishment and funding of the Foundation have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required duly authorized by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding Company, the authorization Board of this Agreement Trustees of the MHC, and the transactions contemplated hereby.
(c) Upon the completion Boards of Directors of the OfferingMid-Tier and the Bank and, to the knowledge of such counsel, the Commissioner’s approval of the Plan remains in full force and effect; the reasonable opinion Bank’s charter has been amended, effective upon consummation of the Conversion and the filing of such amended charter with the Commissioner; to the knowledge of such counsel, the Company, (i) there shall the MHC, the Mid-Tier and the Bank have been no material adverse change in conducted the condition or affairs, financial or otherwise, Conversion and the establishment and funding of the Company from that as Foundation in all material respects in accordance with applicable requirements of the latest date as of which Conversion Regulations, the Plan and all other applicable regulations, decisions and orders thereunder (except to the extent that any such condition is set forth requirement was specifically waived in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into writing by the Company from Commissioner, the latest date as of which FDIC or the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein OTS), including all material applicable terms, conditions, requirements and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or conditions precedent to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of Conversion imposed upon the Company, dated as of the completion date of MHC, the OfferingMid-Tier or the Bank by the Commissioner, that states: (i) each has carefully examined the Prospectus FDIC or the OTS and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 forthknowledge of such counsel, including specifically, but without limitation, any event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission Commissioner, the FDIC or the OTS to suspend the Offering Conversion or the effectiveness of the Prospectus and, Offerings and to the best knowledge of such officerscounsel, no action for such purposes purpose has been instituted or threatened by the CommissionCommissioner, the FDIC or the OTS; and, (iv) all to the knowledge of such counsel, no person has sought to obtain review of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date final action of the completion Commissioner, the FDIC or the OTS in approving the Massachusetts Application (including the Plan which provides for the establishment of the OfferingFoundation), the FDIC Merger Application or the Holding Company Application.
(exxiv) Upon To the completion knowledge of such counsel, the OfferingCompany, Agent shall receivethe MHC, among the Mid-Tier, the Bank and the Subsidiaries have obtained all licenses, permits and other documents, (i) a copy governmental authorizations currently required for the conduct of the order of the Commission declaring their respective businesses as described in the Registration Statement registered; and the Prospectus, and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC, the Mid-Tier, the Bank and the Subsidiaries are in compliance therewith, except where the failure to have such licenses, permits or other governmental authorizations or the failure to be in compliance therewith would not have a Material Adverse Effect.
(iixxv) a copy To the knowledge of the letter from the Georgia Secretary of State evidencing the good standing such counsel, none of the Company; (iii) a copy , the Bank, the Foundation, nor any of the Company's Subsidiaries is in violation of its certificate of incorporation, organization certificate, articles of incorporation certified by or charter, as the Georgia Secretary of State. All such opinionscase may be, statements, letters or bylaws (and documents shall the Bank will not be in compliance with the provisions hereof only if they are, in the reasonable opinion violation of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director charter upon consummation of the Company and delivered to Agent Conversion) or to the knowledge of such counsel for Agent shall be deemed a representation and warranty by the Company to Agent as in default (nor to the statements made therein. If knowledge of such counsel has any condition to Agent's obligations hereunder to be fulfilled prior to event occurred which, with notice or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.lapse of
Appears in 1 contract
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates Bonds and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates Bonds and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates Bonds and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) 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 event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 1 contract
Sources: Sales Agency Agreement (Cornerstone Ministries Investments Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by AgentThe Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent as provided herein shall be hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained in Section 2 hereof as of the date hereofhereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company Company, the MHC and the Bank of their obligations hereunder hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the date hereof, Agent shall receive an opinion have received:
(1) The favorable opinion, dated as of Closing Time, of Muldoon Murphy & Aguggia, ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇pan▇, ▇▇▇ MHC and the Bank, in form and substance satisfactory to counsel of for the Company Agent, to the effect that:
(i) the The Company has been duly incorporated and is incorporated, validly existing and as a corporation in good standing under the laws of the State of Georgia Missouri; the MHC has been duly organized and with full is validly existing as a federal mutual holding company chartered under the laws of the United States; the Bank has been duly organized and is validly existing as a federal savings bank in stock form chartered under the laws of the United States.
(ii) Each of the Company, the MHC and the Bank has the corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth in the Prospectus, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance Prospectus and sale of the Certificates to enter into and Shares (excluding any necessary registrations or registration perform its obligations under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(ciii) Upon the completion of the Offering, in the reasonable opinion Each of the Company, (i) there shall have been no material adverse change the MHC and the Bank has the authority to transact its business in the condition or affairs, financial or otherwise, State of Missouri.
(iv) The authorized capital stock of the Company from that as consists of 20,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01 per share, of which no shares are issued and outstanding; upon consummation of the latest date as of which such condition is set forth in Conversion, the Prospectusauthorized, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition issued and outstanding capital stock of the Company is will be within the range set forth in the Prospectus other than transactions referred under "Capitalization" and, no shares of Common Stock have been or will be issued and outstanding prior to or contemplated therein the Closing Time.
(v) The Securities have been duly and transactions validly authorized for issuance and sale; the Exchange Shares have been duly and validly authorized for issuance; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the ordinary course of businessPlan, will be duly and validly issued and fully paid and nonassessable; (iii) no actionthe Exchange Shares, suit or proceedingwhen issued, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall will be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; duly and (iv) the Certificates validly issued and Shares shall have been registered or registered for offering fully paid and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed uponnonassessable.
(dvi) Upon the completion The issuance of the OfferingSecurities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or regulation or the articles of incorporation, Agent shall receive a certificate of the President charter or bylaws of the Company, dated as the MHC or the Bank.
(vii) The Bank is a member in good standing of the completion date Federal Home Loan Bank of Des Moines.
(viii) The deposit accounts of the OfferingBank are insured by the FDIC up to the applicable limits.
(ix) Upon consummation of the Conversion, all of the issued and outstanding capital stock of Interim No. 2 will have been duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim No. 2 with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The OTS has duly approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim No. 1 and Interim No. 2); to such counsel's actual knowledge, such approvals remain in full force and effect and no action is pendingor threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application, including the Plan, comply as to form in all material respects with the applicable requirements of the OTS, and to such counsel's actual knowledge includes all documents required to be filed as exhibits thereto, and is truthful, accurate and complete (other than the financial statements, notes to financial statements and tabular, statistical and appraisal data included therein, as to which no opinion need be rendered); and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xii) At the time of their use, both the Members' Proxy Statement and the Stockholders' Proxy Statement complied as to form in all material respects with the requirements of the OTS Regulations and the Exchange Act Regulations.
(xiii) The Company, the MHC and the Bank have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, (B) will not violate the articles of incorporation, charter or bylaws of the Company, the MHC or the Bank, and (C) will not result in a breach of or default, or result in the creation of any lien, charge or encumbrance under any agreement filed as an exhibit to the Registration Statement.
(xiv) The Agreement constitutes the legal, valid and binding agreement of each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that states: (i) each has carefully examined enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the Prospectus and laws of fraudulent conveyance) or judicial decisions affecting the Prospectusenforceability of creditors' rights generally or the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since 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 date 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.
(xv) The Registration Statement has been declared effective by the Commission under the Securities Act, and such counsel has been advised by the Commission's staff that no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for such purpose have been initiated or threatened by the Commission.
(xvi) The Prospectus has been declared effective and the Members' Proxy Statement and the Stockholders' Proxy Statement have been cleared in advance by the OTS and, such counsel has been advised by the OTS' staff that no order suspending the effectiveness of the Prospectus 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 event that has or may have a material adverse effect on clearance of the Company, Members' Proxy Statement and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order Stockholders' Proxy Statement has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, OTS and no action proceedings for such purposes has purpose have been instituted initiated or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the OfferingOTS.
(exvii) Upon No further approval, authorization, consent or other order of any public board or body is required in connection with the completion execution and delivery of this Agreement, the issuance of the Offering, Agent shall receive, among other documents, (i) a copy Securities and the Exchange Shares and the consummation of the order Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xviii) At the Commission declaring time the Registration Statement registered; became effective, the Registration Statement (iiother than the financial statements and statistical data included therein, as to which no opinion need be rendered) a copy complied as to form in all material respects with the requirements of the letter from Securities Act and the Georgia Secretary Securities Act Regulations and the OTS Regulations.
(xix) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock complies with all applicable statutory requirements.
(xx) To such counsel's actual knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC or the Bank which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein.
(xxi) The information in the Prospectus under "Risk Factors--Stockholders of Liberty Savings Bank who receive Liberty Bancorp common stock in exchange for their stock in the conversion will receive lesser rights as stockholders than they currently have," and "--Office of Thrift Supervision regulations and anti-takeover provisions in our articles of incorporation restrict the accumulation of our common stock, which may adversely affect our stock price," "Our Dividend Policy," "Federal and State evidencing the good standing Taxation," "Regulation and Supervision," "The Conversion--Description of the Company; (iii) a copy Conversion," "--Effect of the Company's certificate Conversion on Stockholders of incorporation certified by the Georgia Secretary Liberty Savings Bank," "--Share Exchange Ratio," "--Effects of State. All such opinionsConversion on Depositors, statementsBorrowers and Members," "--Material Income Tax Consequences," and "--Liquidation Rights," "Comparison of Stockholders' Rights," "Restrictions on Acquisition of Liberty Bancorp and BankLiberty," "Description of Liberty Bancorp ▇▇▇▇▇▇▇ ▇▇▇▇▇," ▇▇▇ "▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇" ▇▇ ▇he extent that it constitutes matters of law, letters and summaries of legal matters, documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilledproceedings, or may extend the time of their fulfillmentlegal conclusions, has been reviewed by them and is complete and accurate in all material respects.
Appears in 1 contract
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the obligations of Agent as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder and to the following conditions:
(a) At the date hereof, Agent shall receive an opinion of counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the ProspectusOffering Circular;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) the Company has authorized Common Stock as set forth in the Offering Statement and the Offering Circular;
(iv) the issuance and sale of the shares of Common Stock have been duly and validly authorized by all necessary corporate action on the part of the Company; the shares of Common Stock, upon receipt of payment and issuance will be fully paid and non-assessable, and, to the best knowledge of such counsel, the purchasers of the Common Stock from the Company, upon issuance thereof against payment therefor, will acquire such shares of Common Stock and Certificates free and clear of all claims, encumbrances, security interests and liens.
(v) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against each of the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(ivvi) except as set forth in the ProspectusOffering Circular, based solely on conferences with the senior executive officers of the Company, and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Offering Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the ProspectusOffering Circular, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus Offering Circular which are not so described or disclosed and the description in the Prospectus Offering Circular of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(vvii) the Registration Offering Statement has been registered qualified by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Common Stock and Certificates and Shares (excluding any necessary registrations qualifications or registration under the Blue Sky Laws of the various jurisdictions in which the Common Stock and Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Offering Statement or the Prospectus Offering Circular or, to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(viviii) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(viiix) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statementscertificates, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements certificates of officers and directors of the Company and statements certificates of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrationsqualifications, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the CompanyAgent, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the ProspectusOffering Circular, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus Offering Circular other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the shares of Common Stock and Certificates and Shares shall have been registered qualified or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus Offering Circular and the ProspectusOffering Circular, and it does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) since the date the Prospectus Offering Circular became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus Offering Circular which has not been so set forth, including specifically, but without limitation, any event that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus Offering Circular and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, (iv) all of the representations and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Offering Statement registeredqualified; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of State. All such opinions, statementscertificates, letters and documents shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements certificates signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillment.
Appears in 1 contract
Sources: Sales Agency Agreement (Cornerstone Ministries Investments Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the The obligations of the --------------------------------- Agent to sell the Shares as provided herein shall be subject to the accuracy accuracy, as of the date hereof and as of each Closing Date, of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to the provisions hereofherein, to the performance by the Company of their its obligations hereunder and to the following additional conditions:
(a) At The Registration Statement shall have become effective and no stop order suspending the date hereofeffectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, Agent to the knowledge of the Company, threatened by the Commission.
(b) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall receive an opinion of counsel not have been any material change, on a consolidated basis, in the capital stock of the Company and its subsidiaries, or any material adverse change in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries.
(c) The Agent shall have received on the date hereof and at every other date specified in Section 4(1) hereof, opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel of the Company or such other Counsel satisfactory to the Agent, dated as of such dates, respectively, to the effect that:
(i) the The Company has been duly incorporated and is incorporated, validly existing and as a corporation in good standing under the laws of State the Commonwealth of Georgia and Pennsylvania, with full power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The portions of the information contained in the Prospectus, which are stated therein to the best knowledge have been made on his authority, have been reviewed by him and, as to matters of such counsellaw and legal conclusions, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewithcorrect;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against the Company, except to the extent that the provisions of Section 7 and 8 hereof may be unenforceable as against public policy;
(iv) except as set forth The descriptions in the Prospectus, based solely on conferences with the senior executive officers of the Company, Registration Statement and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, legal and governmental proceedings and contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) ; and such counsel does not know of any legal or governmental proceedings required to be described in the Registration Statement has been registered by the Commission; and no further approval or Prospectus which are not described, or of any other governmental authority is contracts or documents of a character required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions to be described in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying the Registration Statement or the Prospectus oror to be filed as exhibits to the Registration Statement which are not described and filed as required; it being understood that such counsel need express no opinion as to the financial statements and other financial data contained or incorporated by reference in the Registration Statement or the Prospectus;
(iv) This Agreement has been duly authorized, executed and delivered by the Company;
(v) All legally required proceedings in connection with the authorization and issue of the Shares and the sale of the Shares by the Company in the manner set forth herein, have been had and remain in effect, and all requisite action of public boards or bodies (other than in connection or in compliance with the provisions of the securities or blue sky laws of any jurisdiction) as may be legally required with respect to all or any of such matters or related thereto has been taken and remains in effect, and the Company is exempt from the provisions of the Public Utility Holding Company Act of 1935 applicable to it as a holding company and with respect to such authorization, issue and sale;
(vi) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus;
(vii) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to any preemptive or similar rights; and
(viii) The Shares have been duly authorized and conform to the description thereof contained in the Prospectus, and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(d) The Agent shall have received on the date hereof and at every other date specified in Section 4(1) hereof, opinions of Company Counsel, dated as of such dates, respectively, to the effect that:
(i) The Shares have been duly authorized and conform in all material respects to the description thereof contained in the Prospectus, and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights under Federal or New York law or the Company's certificate of incorporation or by-laws;
(ii) The Registration Statement has become effective under the Act and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless no stop order suspending the potential litigant or government authority has manifested to the management effectiveness of the Company, Registration Statement or to such counsel, a present intention to initiate such litigation any part thereof has been issued and no proceeding for that purpose have been instituted or proceeding;
(vi) to such counsel's best knowledge are pending or contemplated under the execution and delivery by the Company ofAct, and performance the Registration Statement, as of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed byeffective date, and interpreted in accordance withany amendment or supplement thereto, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectusits date, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon the completion of the Offering, Agent shall receive a certificate of the President of the Company, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, as of the date of this Agreement, complied as to form in all material respects with the requirements of the Act and it does not contain an the Rules and Regulations, and nothing has come to the attention of such counsel which would lead such counsel to believe either that the Registration Statement or any such amendment or supplement, as of such dates, contained any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of this Agreement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements and other financial data contained or incorporated by reference in the Registration Statement or the Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered by the Company ;
(iv) No approval, authorization, consent or other order of any public board or body of the United States is legally required for the authorization of the issuance and sale of the Shares; and
(v) The statements made in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute summaries of the terms of the Company's Common Stock (including the Shares), constitute accurate summaries of the terms of such Common Stock in all material respects. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to matters governed by Pennsylvania law upon the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. or such other counsel referred to in paragraph (d) above. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall be rendered to you at the request of the Company and shall so state therein.
(e) On the date hereof and at such other dates specified in Section 4(m) hereof, the Agent shall have received a letter from PricewaterhouseCoopers LLP, independent public accountants for the Company, or other independent accountants satisfactory to the Agent, in form and substance satisfactory to the Agent, to the effect that:
(i) They are independent accountants with respect to the Company and its subsidiaries within the meaning of the Act and the Rules and Regulations;
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the published rules and regulations thereunder with respect to registration statements on Form S-3;
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the shareowners and the Boards of Directors of the Company and its Executive, Compensation and Corporate Governance, Finance and the Audit and Corporate Responsibility Committees since the date day after the Prospectus became authorized for final use, no event has occurred which should have been end of the last audited period as set forth in an amendment or supplement the minute books through a specified date not more than five business days prior to the Prospectus date of delivery of such letter; and
(B) With respect to the unaudited consolidated balance sheet as of the most recent quarter ended and the unaudited consolidated statements of income and of cash flows included in the Company's Quarterly Report on Form 10-Q for the most recent quarter ended ("Form 10-Q") incorporated by reference in the Registration Statement,
(i) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim ------- Financial Information, on the unaudited consolidated balance --------------------- sheet and the unaudited consolidated statements of income and of cash flows for the most recent quarter ended and year to date, and prior year periods, included in the Company's Form 10-Q incorporated by reference in the Registration Statement;
(ii) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the unaudited consolidated financial statements referred to in (B)(i) comply as to form in all material respects with the applicable accounting requirements of the Exchange Act, as it applies to Form 10-Q and the related published rules and regulations thereunder;
(C) Reading the unaudited interim financial data for the period from the date of the latest balance sheet included or incorporated in the Registration Statement to the date of the latest available interim financial data; and
(D) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below; nothing has come to their attention as a result of the foregoing procedures that caused them to believe that (i) the unaudited consolidated financial statements described in (B)(i), included in the Form 10-Q and incorporated by reference in the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act, as it applies to Form 10-Q, and the related published rules and regulations thereunder; or (ii) any material modifications should be made to the unaudited consolidated financial statements described in (B)(i), included in the Form 10-Q and incorporated by reference in the Registration Statement, for them to be in conformity with generally accepted accounting principles; or (iii) at the date of the latest available interim financial data and at the date of the latest available month end, there was any change in the common equity; (iv) at the date of the latest available interim financial data and at a specified date not more than five business days prior to the date of delivery of such letter, there was any change in the common stock or preferred stock (with or without sinking fund requirements) (except for changes in shares of certain series of preferred stock of a subsidiary of the Company redeemed for, purchased or otherwise retired in anticipation of, sinking fund requirements for such series or as a result of the surrender by the Company of any preferred stock of PP&L, Inc. theretofore purchased by the Company) or increase in long-term debt of the Company and subsidiaries consolidated as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement; or (v) for the period from the closing date of the latest consolidated income statement incorporated by reference in the Registration Statement to the date of the latest available interim financial data there were any decreases, as compared with the corresponding period in the preceding year, in net income, except in all instances for changes, increases or decreases which the Registration Statement, including the documents incorporated therein by reference, discloses have occurred or may occur, or they shall state any specific changes or decreases.
(iv) The letter shall also state that the information set forth in Annex I hereto, which is expressed in dollars (or percentages derived from such dollar amounts) and has been obtained from accounting records which are subject to the internal controls of the Company's accounting system or which has not been so set forthderived directly from such accounting records by analysis or computation, including specificallyis in agreement with such records or computations made therefrom, but without limitationexcept as otherwise specified in such letter.
(f) The Agent shall have received from the Company a certificate signed by the President, any event that has a Vice President or may have a material adverse effect on financial or accounting officer of the Company, dated as of the date hereof and dated as of each Certificate Date contemplated by this Agreement to the effect that, to the best of his or her knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and correct (except for immaterial details), as of the date hereof or the Certificate Date, and the Company has complied with all the agreements and satisfied all the conditions set forth in clauses on its part to be performed or satisfied at or prior to the date hereof and each such Certificate Date (as the case may be);
(ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no No stop order has been issued by the Commission to suspend the Offering or suspending the effectiveness of the Prospectus andRegistration Statement has been issued, and no proceeding for that purpose has been instituted or, to the best knowledge of such officersofficer after due inquiry, no action for such purposes has been instituted or threatened is threatened, by the Commission; and,
(iviii) all of the representations The Company and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on its subsidiaries have not sustained since the date of the completion latest audited financial statements included or incorporated by reference in the Prospectus any material adverse change in the financial condition or results of operations of the OfferingCompany and its subsidiaries considered as one enterprise except as set forth or contemplated in the Registration Statement or Prospectus or as described in such certificate.
(eg) Upon The Shares shall have been authorized for listing, subject to notice of issuance, on the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified by the Georgia Secretary of StateNew York Stock Exchange. All such opinions, statementscertificates, letters and other documents shall will be in compliance with the provisions hereof only if they areare satisfactory in form and substance to the Agent. The Company will furnish the Agent with such conformed copies of such opinions, in certificates, letters and other documents as the reasonable opinion of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillmentreasonably request.
Appears in 1 contract
Sources: Sales Agency Agreement (PPL Corp)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the The obligations of Agent as provided herein shall be the Agents hereunder are subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof, to the accuracy of the statements of officers and directors of the Company made pursuant to contained herein on the provisions hereof, to date hereof and at the time of purchase and the performance by the Company of their its obligations hereunder and to the following conditionsadditional conditions precedent:
(a) At The Company shall furnish to the date hereof, Agent shall receive Agents at the time of purchase an opinion of Ropes & Gray LLP, special counsel of the Company that:
(i) the Company is incorporated, validly existing and in good standing under the laws of State of Georgia and with full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) to the best knowledge of such counsel, all such licenses, permits and other governmental authorizations are in full force and effect and the Company is complying in all material respects therewith;
(iii) this Agreement has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered on behalf of the Company. This Agreement is enforceable in accordance with its terms against for the Company, except addressed to the extent that A▇▇▇▇s, and dated the provisions time of Section 7 purchase, in form and 8 hereof may be unenforceable as against public policy;
(iv) except substance as set forth on Exhibit B hereto. ---------
(b) The Agents shall have received from Grant Thornton LLP letters dated, respectively, the date of t▇▇▇ ▇▇▇▇▇▇▇▇▇ and the time of purchase, and addressed to the Agents in the Prospectusform and substance heretofore approved by, based solely on conferences with or otherwise satisfactory to, the senior executive officers Agents.
(c) The Agents shall have received from Cooley Godward LLP, counsel for the Agents, such opinion or o▇▇▇▇▇▇s dated the time of the Company, purchase and an investigation of certain corporate records made available to counsel by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, addressed to the best knowledge of such counselAgents, threatened against or involving the assets of the Company required with respect to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shown;
(v) the Registration Statement has been registered by the Commission; and no further approval of any other governmental authority is required for the issuance and sale of the Certificates and Shares (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered as to which no opinion is expressed); and no proceedings are pending by or before the Commission seeking to revoke or rescind the qualifying Shares, the Registration Statement or Statement, the Prospectus orand other related matters as the Agents may reasonably require, and the Company shall have furnished to the best knowledge of such counsel, are any such proceedings contemplated or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding;
(vi) to such counsel's best knowledge the execution and delivery by the Company of, and performance of their agreements in this Agreement, shall not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties or assets of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subject, or any governmental license or permit; nor will any of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statements, there has been no breach of the Company's articles of incorporation or bylaws, or material breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they may reasonably may require request for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated herebysuch matters.
(cd) Upon No Prospectus or amendment or supplement to the completion Registration Statement or the Prospectus, including documents deemed to be incorporated by reference therein, shall have been filed to which you reasonably object in writing.
(e) Prior to the time of the Offering, in the reasonable opinion of the Companypurchase, (i) there the Prospectus Supplement shall have been no material adverse change duly filed with the Commission in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to thereinaccordance with Rule 424(b); (ii) there no stop order with respect to the effectiveness of the Registration Statement shall have been no material transactions entered into by issued under the Company from the latest date as of which the financial condition Act or proceedings initiated under Section 8(d) or 8(e) of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of businessAct; (iii) no action, suit order preventing or proceeding, at law suspending the use of the Prospectus Supplement shall have been issued and no proceeding for that purpose shall have been initiated or in equity or before or threatened by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the CompanyCommission; and (iv) no order having the Certificates and effect of ceasing or suspending the distribution of the Shares shall have been registered or registered for offering and sale by the Company under the Blue Sky Laws any other securities of such jurisdictions as Agent and the Company shall have agreed upon.
(d) Upon been issued by the completion of Commission or Nasdaq and no proceedings for that purpose shall have been instituted or shall be pending or, to the Offering, Agent shall receive a certificate of the President knowledge of the Company, dated as of contemplated by the completion date of Commission or Nasdaq; (v) the Offering, that states: (i) each has carefully examined the Prospectus Registration Statement and the Prospectus, and it does all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (vi) the Prospectus and all amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading; .
(iif) since Between the time of execution of this Agreement and the time of purchase, no material adverse change or any development involving a prospective material adverse change in business, properties, management, condition, financial or otherwise, operations, prospects or results of operation of the Company and the Subsidiaries taken as a whole shall occur or become known, which, in the sole judgment of the Agents, makes it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated by the Prospectus.
(g) The Company shall have furnished to the Agents a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the date of the Prospectus became authorized for final usetime of purchase, no event has occurred which should to the effect that the signers of such certificate have been set forth in an amendment or supplement carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus which has not been so set forth, including specifically, but without limitation, any event and this Agreement and that has or may have a material adverse effect on the Company, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best knowledge of such officers, no action for such purposes has been instituted or threatened by the Commission; and, person after reasonable inquiry:
(iv1) all of the representations and warranties contained of the Company in Section 2 of this Agreement are true and correct, correct on and as of the time of purchase with the same force and effect as though expressly if made at the time of purchase and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the time of purchase;
(2) The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such person's knowledge, threatened; and
(3) since the date of the completion of the Offering.
(e) Upon the completion of the Offering, Agent shall receive, among other documents, (i) a copy of the order of the Commission declaring the Registration Statement registered; (ii) a copy of the letter from the Georgia Secretary of State evidencing the good standing of the Company; (iii) a copy of the Company's certificate of incorporation certified most recent financial statements included or incorporated by the Georgia Secretary of State. All such opinions, statements, letters and documents shall be in compliance with the provisions hereof only if they are, reference in the reasonable opinion Prospectus, except as disclosed in the Prospectus there has been no material adverse change or any development involving a prospective material adverse change in business, properties, management, condition, financial or otherwise, operations, prospects or results of Agent and its counsel, satisfactory to Agent and its counsel. Any statements signed by an officer or director operation of the Company and delivered the Subsidiaries taken as a whole.
(h) The Company shall have furnished to Agent or to counsel for Agent shall be deemed a representation you such other documents and warranty by certificates as the Company to Agent as to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion of the Offering is not so fulfilled, Agent, in its sole discretion, Agents may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend the time of their fulfillmentreasonably request.
Appears in 1 contract
Sources: Agency Agreement (Stemcells Inc)
Conditions of Agent’s Obligations. Except as may be waived in writing by Agent, the The obligations of Agent --------------------------------- the Agents to act and continue to act as provided herein Agents hereunder, and the obligation of the Agents to purchase Securities as principal pursuant to any Terms Agreement, shall be subject to the accuracy of of, and compliance with, the representations and warranties of FPL contained in Section 2 hereof as of herein at the date hereof, to the accuracy of the statements of officers this agreement and directors of the Company made pursuant to the provisions hereofany Settlement Date (except for immaterial details), to the performance by the Company FPL of their its obligations to be performed hereunder (except for immaterial details) and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect; no order of the Commission directed to the adequacy of any Incorporated Document shall have been issued; no proceedings for either such purpose shall be pending before, or threatened by, the Commission; at the date of this agreement the Agents shall have received a certificate signed by FPL to the effect that, to the best of its knowledge, no such order is in effect and no proceedings for such purpose are pending before, or, to the knowledge of FPL, threatened by, the Commission; and all requests for additional information with respect to the Registration Statement or the Prospectus on the part of the Commission shall have been complied with by FPL to the reasonable satisfaction of the Agent.
(b) At the date hereofof this agreement, Agent the Agents shall receive an have received from Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL, a favorable opinion of counsel (with a copy thereof for each of the Company Agents), which opinion will not pass upon compliance with provisions of the blue sky laws of any jurisdiction, in form and substance satisfactory to Counsel for the Agents, to the effect that:
(i) the Company FPL is incorporated, validly organized and existing corporation and is in good standing under the laws of the State of Georgia Florida, and with full power is doing business in that State, and authority to own has valid franchises, licenses and permits adequate for the conduct of its properties and conduct its business as described in the Prospectusbusiness;
(ii) FPL is a corporation duly authorized by its Charter to conduct the business which it is now conducting as set forth in the Prospectus; FPL is subject, as to retail rates and services, issuance of securities, accounting and certain other matters, to the best knowledge jurisdiction of such counselthe Florida Public Service Commission; and FPL is subject, all such licensesas to wholesale rates, permits accounting and certain other governmental authorizations are in full force and effect and matters to the Company is complying in all material respects therewithjurisdiction of the Federal Energy Regulatory Commission;
(iii) this Agreement the Mortgage has been duly and validly authorized by all necessary corporate action on the part of the Company and action, has been duly and validly executed and delivered on behalf of the Company. This Agreement delivered, and is a valid and binding instrument and is enforceable in accordance with its terms against the Companyterms, except to as limited by bankruptcy, insolvency or other laws affecting mortgagees' and other creditors' rights generally and equitable limitations on the extent that the provisions enforceability of Section 7 and 8 hereof may be unenforceable as against public policyspecific remedies;
(iv) the Securities will, when issued and paid for as contemplated herein, be valid and binding obligations of FPL and, assuming payment of intangible tax and document excise tax in accordance with the Procedures, such Securities will be enforceable in accordance with their terms, except as set forth in limited by bankruptcy, insolvency or other laws affecting mortgagees' and other creditors' rights generally and equitable limitations on the Prospectusenforceability of specific remedies, based solely on conferences with and will be entitled to the senior executive officers benefit of the Company, and an investigation of certain corporate records made available to counsel security afforded by the Company as conducted in connection with the preparation of the Registration Statement, there are no material legal or governmental proceedings pending or, to the best knowledge of such counsel, threatened against or involving the assets of the Company required to be disclosed in the Prospectus, provided that for this purpose such counsel shall not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management of the Company, or to such counsel, a present intention to initiate such litigation or proceeding; nor are there any statutes, regulations, contracts or other documents required to be described or disclosed in the Prospectus which are not so described or disclosed and the description in the Prospectus of such statutes, regulations, contracts and other documents therein described are accurate summaries and fairly present the information required to be shownMortgage;
(v) the Registration Statement has been registered by Statement, at the Commission; Effective Date, and no further approval of any other governmental authority is required for the issuance and sale of Prospectus at the Certificates and Shares Rule 424 Date (excluding any necessary registrations or registration under the Blue Sky Laws of the various jurisdictions in which the Certificates and Shares were offered except as to which no opinion is expressed); the financial statements and no proceedings are pending other financial or statistical data contained or incorporated by or before the Commission seeking to revoke or rescind the qualifying reference therein and except for those parts of the Registration Statement that constitute a Statement of Eligibility and Qualification on Form T-1, or amendments thereto, upon which such opinion need not pass) complied as to form in all material respects with the Prospectus orapplicable requirements of the Securities Act and the applicable instructions, rules and regulations of the Commission thereunder and the Incorporated Documents (except as to the financial statements and other financial or statistical data contained or incorporated by reference therein, upon which such opinion need not pass), at the time they were filed with the Commission, complied as to form in all material respects with the applicable requirements of the Exchange Act and the applicable instructions, rules and regulations of the Commission thereunder. The Registration Statement is, at the date of this agreement, effective under the Securities Act, and to the best of the knowledge of such said counsel, no proceedings for a stop order with respect thereto are any such proceedings contemplated pending or threatened; provided that for this purpose such counsel not regard any litigation or governmental procedure to be "threatened" unless the potential litigant or government authority has manifested to the management threatened under Section 8 of the Company, or to such counsel, a present intention to initiate such litigation or proceedingSecurities Act;
(vi) to such counsel's best knowledge the execution consummation of the transactions herein contemplated and delivery the fulfillment of the terms hereof and the compliance by FPL with all the Company of, terms and performance provisions of their agreements in this Agreement, shall the Mortgage will not conflict with nor result in a breach of the articles of incorporation or bylaws of the Company, nor constitute a breach of or default (or an event which, with notice or lapse of time or both, would constitute a default) under, nor give rise to any right of termination, cancellation or acceleration contained in, or result in the creation or imposition or any material lien, charge or other encumbrance upon any of the properties terms or assets provisions of, or constitute a default under, the Charter or by-laws of the Company pursuant to any of the terms, provisions or conditions, any material agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which it or its assets or properties may be bound or is subjectFPL, or any governmental license indenture, mortgage, deed of trust or permit; nor will any other agreement or instrument the terms of such actions violate any law, administrative regulation or order or court order, writ, injunction or decree; and
(vii) which are known to the best knowledge of such counsel based solely on the conferences and other investigations and officers' statementsto which FPL is now a party, there has been no breach of the Company's articles of incorporation or bylaws, or material except where such breach or default (or the occurrence of any event which, with the lapse of time or action, or both, by a third party, would result in a material breach or a material default), under any agreement, contract, indenture, bond, debenture, note, instrument or obligation to which the Company is a party or by which any of them or any of their respective assets or properties may be bound, or any governmental license or permit, or a violation of any law, administrative regulation or order, or court order, writ, injunction or decree. In giving such opinion, such counsel may rely as to all matters of fact on statements of officers and directors of the Company and statements of public officials delivered pursuant hereto. Such opinion shall be governed by, and interpreted in accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of Business Law (1991) whereby it shall be subject to the registrations, exceptions, definitions, limitations on coverage and other limitations all as more particularly described in the Accord, which opinion should be read in conjunction therewith. For purposes of such opinion, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Company, or to their counsel, a present intention to initiate such litigation or proceeding.
(b) Counsel for Agent shall have been furnished such documents as they reasonably may require for the purpose of enabling them to review or pass upon the matters required by Agent, and for the purpose of evidencing the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained, including but not limited to, resolutions of the Board of Directors of the Company regarding the authorization of this Agreement and the transactions contemplated hereby.
(c) Upon the completion of the Offering, in the reasonable opinion of the Company, (i) there shall have been no material adverse change in the condition or affairs, financial or otherwise, of the Company from that as of the latest date as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transactions entered into by the Company from the latest date as of which the financial condition of the Company is set forth in the Prospectus other than transactions referred to or contemplated therein and transactions by the Company in the ordinary course of business; (iii) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or to the Company's best knowledge threatened against the Company or affecting any of their respective assets, wherein an unfavorable decision, ruling or finding would result in a material adverse effect on the Company; and (iv) the Certificates and Shares shall have been registered business, properties or registered for offering and sale by the Company under the Blue Sky Laws financial condition of such jurisdictions as Agent and the Company shall have agreed upon.FPL;
(dvii) Upon nothing has come to the completion attention of said counsel that would lead them to believe that the Registration Statement (except as to the financial statements and other financial or statistical data contained or incorporated by reference therein and except for those parts of the OfferingRegistration Statement that constitute a Statement of Eligibility and Qualification on Form T-1, Agent shall receive a certificate of or amendments thereto, upon which such opinion need not pass), at the President of the CompanyEffective Date, dated as of the completion date of the Offering, that states: (i) each has carefully examined the Prospectus and the Prospectus, and it does not contain an contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the Rule 424 Date and at the date of such opinion (except as aforesaid), included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (ii) since , provided that such counsel may state that their belief is based upon their participation in the date preparation of the Registration Statement and the Prospectus became authorized and any supplements and amendments thereto and review and discussion of the contents thereof, but is without independent check or verification except as specified;
(viii) the Securities are being issued and sold pursuant to the authority contained in an order of the Florida Public Service Commission, which authority is adequate to permit the issuance and sale of the Securities during the calendar year. To the best of the knowledge of said counsel, said authorization is still in full force and effect, and no further approval, authorization, consent or order of any public board or body (other than in connection or in compliance with the provisions of the blue sky laws of any jurisdiction) is legally required for final usethe authorization of the issuance and sale of the Securities;
(ix) the Securities conform, no event as to legal matters, with the statements concerning them made under the headings "New Bonds" and "Certain Terms of the Offered Notes" in the Prospectus;
(x) the Mortgage is duly qualified under the 1939 Act;
(xi) this agreement has occurred been duly and validly authorized, executed and delivered by FPL;
(xii) as to the Mortgaged and Pledged Property, as defined in the Mortgage, FPL has satisfactory title to any easements and personal properties, and good and marketable or insurable title in fee simple to any other real properties (except as FPL's interest is stated to be otherwise), subject only to Excepted Encumbrances, as defined in the Mortgage, to any lien, if any, existing or placed thereon at the time of acquisition thereof by FPL, to minor defects and encumbrances customarily found in the case of properties of like size and character and which, in the opinion of said counsel, would not impair the use thereof by FPL (all of which should have been title exceptions, encumbrances, liens and defects are hereinafter referred to as "Exceptions"), and to the lien of the Mortgage; the Mortgage constitutes a valid, direct, and first mortgage lien upon the Mortgaged and Pledged Property now owned by FPL, subject, however, to the Exceptions and as set forth in an amendment or supplement the last sentence of this paragraph; and the description of properties in the Mortgage is adequate to constitute the Mortgage a lien on Mortgaged and Pledged Property hereafter acquired by FPL, subject, however, to the Prospectus Exceptions and except as limited by bankruptcy, insolvency or other laws affecting mortgagees' and other creditors' rights generally and equitable limitations on the enforceability of specific remedies. Mortgaged and Pledged Property acquired after the most recent recording of a supplemental indenture may also be subject to possible rights of others which has not been so set forthmay attach prior to recordation of a supplemental indenture subsequent to the acquisition of such property.
(xiii) except as stated or referred to in the Prospectus, including specifically, but without limitation, any event that has there are no material pending legal proceedings to which FPL is a party or may of which property of FPL is the subject which if determined adversely would have a material adverse effect on the CompanyFPL, and the conditions set forth in clauses (ii) and (iii) of subsection (c) of this Section 6 have been satisfied; (iii) no order has been issued by the Commission to suspend the Offering or the effectiveness of the Prospectus and, to the best of the knowledge of such officerssaid counsel, no action for such purposes proceeding is known to be contemplated by governmental authorities; and
(xiv) the information contained in the Prospectus which is stated therein to have been made in reliance upon the authority of said counsel or is specifically attributed to them, has been instituted or threatened reviewed by them and is correct. In said opinion such counsel may rely as to all matters of New York law on an opinion of ▇▇▇▇ & Priest LLP and as to matters relating to Mortgaged and Pledged Property located in the Commission; and, State of Georgia on (ivi) all prior opinions provided to FPL on matters of the representations Georgia law and warranties contained in Section 2 of this Agreement are true and correct, with the same force and effect as though expressly made on (ii) a current opinion from Georgia counsel.
(c) At the date of this agreement, the completion Agents shall have received from ▇▇▇▇ & Priest LLP, counsel to FPL, a favorable opinion (with a copy thereof for each of the OfferingAgents), which opinion will not pass upon compliance with provisions of the blue sky laws of any jurisdiction, in form and substance satisfactory to Counsel for the Agents, to the same effect with respect to matters enumerated in paragraphs (iii) through (xi) of subsection (b) of this Section 7. In said opinion such counsel may rely as to all matters of Florida law on the opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, and will not pass upon the incorporation of FPL, titles to property, franchises or the lien of the Mortgage.
(d) At the date of this agreement, the Agents shall have received from Counsel for the Agents a favorable opinion (with a copy thereof for each of the Agents) to the same effect with respect to the matters enumerated in (iii) - (v) and (vii) - (xi) of Subsection (b) of this Section 7. In said opinion such counsel may rely as to all matters of Florida law on the opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, and will not pass upon the incorporation of FPL, titles to property, franchises or the lien of the Mortgage.
(e) Upon At the completion date of this agreement, each of the Offering, Agent Agents shall receive, among other documents, have received from Deloitte & Touche LLP a letter to the effect that (i) a copy they are independent public accountants with respect to FPL within the meaning of the order of Securities Act and the Commission declaring Exchange Act and the Registration Statement registeredapplicable published rules and regulations thereunder; (ii) a copy in their opinion, the consolidated financial statements audited by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the letter from Securities Act and the Georgia Secretary of State evidencing Exchange Act and the good standing of the Companypublished rules and regulations thereunder; (iii) on the basis of a copy reading of the Companyunaudited condensed consolidated financial statements of FPL incorporated by reference in the Prospectus, the latest available interim unaudited consolidated financial statements of FPL since the close of FPL's certificate most recent audited fiscal year, the minutes and consents of incorporation certified the Board of Directors, the Finance Committee of the Board of Directors, the Stock Issuance Committee of the Board of Directors, and the Shareholder of FPL since the end of the most recent audited fiscal year, and inquiries of officials of FPL who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP make no representation as to the sufficiency of such procedures for the several Agents' purposes), nothing has come to their attention which caused them to believe that (a) the unaudited condensed consolidated financial statements of FPL incorporated by reference in the Prospectus (1) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations thereunder and (2) except as disclosed in the Prospectus, are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements of FPL incorporated by reference in the Prospectus, (b) at the date of the latest available interim balance sheet read by them and at a specified date not more than five days prior to the date of this agreement there was any change in the common stock, additional paid-in capital, preferred stock or long-term debt of FPL and its subsidiaries, or decrease in their net assets, in each case as compared with amounts shown in the most recent consolidated balance sheet incorporated by reference in the Prospectus, except in all instances for changes or decreases which the Prospectus discloses have occurred or may occur, or as occasioned by the Georgia Secretary declaration, provision for, or payment of State. All dividends, or which are described in such opinionsletter, statementsor (c) for the period from the date of the most recent consolidated balance sheet incorporated by reference in the Prospectus to the latest available interim balance sheet read by them and for the period from the date of the latest available interim balance sheet read by them to a specified date not more than five days prior to the date of this agreement, letters there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated operating revenues or in net income or net income available to FPL Group, Inc., except in all instances for decreases which the Prospectus discloses have occurred or may occur, or which are described in such letter; and documents (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to certain amounts included in the Prospectus and Exhibit 12 to the Registration Statement and such other items as the Agents may reasonably request.
(f) Since the respective most recent dates as of which information is given in the Registration Statement and Prospectus, there shall have been no material adverse change in the business, properties or financial condition of FPL, except as reflected in or contemplated by the Registration Statement and Prospectus, and since such dates there shall have been no material transaction entered into by FPL other than transactions disclosed by the Registration Statement and the Prospectus, and transactions in the ordinary course of business; and at the date of this agreement the Agents shall have received a certificate to such effect, signed by FPL.
(g) The Agents shall have received any certificate required by Section 8(b) hereof.
(h) On the first Settlement Date occurring in each calendar year, Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP and ▇▇▇▇ & Priest LLP shall each provide to the Agents an opinion dated the Settlement Date to the effect provided in Section 7(b)(viii).
(i) There shall be in compliance with the provisions hereof only if they are, in the reasonable opinion of Agent full force and its counsel, satisfactory to Agent and its counsel. Any statements signed by effect an officer or director authorization of the Company and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company to Agent as Florida Public Service Commission with respect to the statements made therein. If any condition to Agent's obligations hereunder to be fulfilled prior to or upon the completion issuance and sale of the Offering is not so fulfilledSecurities on the terms herein stated or contemplated, Agent, in its sole discretion, may terminate this Agreement or, if Agent, in its sole discretion so elects, may waive any such conditions which have not been fulfilled, or may extend and containing no provision unacceptable to the time of their fulfillment.
Appears in 1 contract