Conditions of the Agents’ Obligations. Except as may be waived by ------------------------------------- the Agents, the obligations of the Agents as provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof and as of the Closing Date, to the performance by the Company and the Bank of their obligations hereunder and to the following conditions: (a) At the Closing Date, the Agents shall receive the favorable opinion of Reinhart, Boerner, Van Dewren, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C., special counsel for the Company and the Bank, dated the Closing Date, addressed to the Agents with respect to the treatment under applicable law of the Bank's past and present practice concerning the changing of interest on loans and recent corrective actions with respect thereto, in form and substance reasonably satisfactory to counsel for the Agents and also to the effect that: (i) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of Delaware; the Bank has been organized and is validly existing as a mutual savings bank under the laws of the United States; upon consummation of Conversion, the Bank will be duly organized and validly existing as a federal stock savings bank; each of the Company and the Bank has, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in the Prospectus; (ii) each of the Company and the Bank has been duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure to be so qualified or in good standing in one or more of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole; (iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened; (iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries; (v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bank, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; (vi) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions with respect to the Plan and the Conversion imposed by the Office, except with respect to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with by the Company and the Bank in all material respects; and, to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth in the Registration Statement and the Prospectus, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete in all material respects; (viii) the issuance and sale of the Shares have been duly and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shares, upon receipt of payment and issuance in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paid, nonassessable and free of preemptive rights, and to such counsel's actual knowledge, purchasers of the Shares from the Company, upon issuance thereof against payment therefor, will acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; (ix) the certificates for the Shares are in due and proper form and comply with applicable law; (x) the issuance and sale of the capital stock of the Bank to the Company have been duly authorized by all necessary action of the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledge, beneficially by the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, 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 Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank; and this Agreement is a legal, valid and binding obligation of each of the Company and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, receivership, conservatorship or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings and loan holding companies, including the laws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDIC, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except to the extent that the provisions of Sections 8 and 9 hereof may be unenforceable as against public policy, as to which no opinion need be rendered; (xiii) there is no material legal, investigation, regulatory, administrative or governmental investigation, action, suit or proceeding pending or, to such counsel's actual knowledge, threatened against or involving the assets of the Company or the Bank, except as described in the Prospectus; (xiv) the statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition of the Company and the Bank," "Certain Anti-takeover Provisions in the Certificate of Incorporation and Bylaws," "Description of Capital Stock,"
Appears in 1 contract
Conditions of the Agents’ Obligations. Except as may be waived by ------------------------------------- the Agents, the 5.1 The obligations of the Agents as Agent provided herein shall be subject to the accuracy of the representations and warranties contained in Section 2 hereof as of the date hereof and as of the Closing DateCompany herein, to the performance by the Company and the Bank of their its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceeding for that purpose shall have been instituted or, to the actual knowledge of the Company or the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Agent’s reasonable satisfaction.
(b) The Agent shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that, in the Agent’s reasonable opinion, is material, or omits to state a fact that, in the Agent’s reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) At the Closing Datetime of execution of this Agreement, the Agents shall receive the favorable opinion of Reinhart, Boerner, Van Dewren, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.C.LLP, special counsel for to the Company and Company, shall have furnished to the BankAgent its written opinion, dated as counsel to the Closing DateCompany, addressed to the Agents with respect to Agent and dated the treatment under applicable law of the Bank's past and present practice concerning the changing of interest on loans and recent corrective actions with respect theretodate hereof, in form and substance reasonably satisfactory to counsel for the Agents Agent, substantially in the form attached hereto as Exhibit A.
(d) The Agent shall have received from Ernst & Young LLP a letter, in form and also substance satisfactory to the effect that:
Agent, addressed to the Agent (i) confirming that they are independent public accountants within the Company has been duly organized and is validly existing as a corporation in good standing under the laws of Delaware; the Bank has been organized and is validly existing as a mutual savings bank under the laws meaning of the United States; upon consummation Securities Act and are in compliance with the applicable requirements relating to the qualification of Conversion, the Bank will be duly organized and validly existing as a federal stock savings bank; each accountants under Rule 2-01 of Regulation S-X of the Company and the Bank hasCommission, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) each of stating the Company conclusions and the Bank has been duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure to be so qualified or in good standing in one or more findings of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole;
(iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened;
(iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries;
(v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bank, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; (vi) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions firm with respect to the Plan financial information and the Conversion imposed other matters ordinarily covered by the Office, except with respect accountants’ “comfort letters” to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with by the Company and the Bank in all material respects; and, to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth in the Registration Statement and the Prospectus, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete in all material respects; (viii) the issuance and sale of the Shares have been duly and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shares, upon receipt of payment and issuance in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paid, nonassessable and free of preemptive rights, and to such counsel's actual knowledge, purchasers of the Shares from the Company, upon issuance thereof against payment therefor, will acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; (ix) the certificates for the Shares are in due and proper form and comply with applicable law; (x) the issuance and sale of the capital stock of the Bank to the Company have been duly authorized by all necessary action of the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledge, beneficially by the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, no further approval, authorization, consent or other order of any public board or body is required underwriters in connection with registered public offerings.
(e) The Stock shall be included for listing on the execution and delivery of this Agreement, NYSE.
(f) There shall not have occurred any event that would permit the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as Agent to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of terminate this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank; and this Agreement is a legal, valid and binding obligation of each of the Company and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, receivership, conservatorship or similar laws relating pursuant to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings and loan holding companies, including the laws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDIC, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except to the extent that the provisions of Sections 8 and 9 hereof may be unenforceable as against public policy, as to which no opinion need be rendered;
(xiii) there is no material legal, investigation, regulatory, administrative or governmental investigation, action, suit or proceeding pending or, to such counsel's actual knowledge, threatened against or involving the assets of the Company or the Bank, except as described in the Prospectus;
(xiv) the statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition of the Company and the Bank," "Certain Anti-takeover Provisions in the Certificate of Incorporation and Bylaws," "Description of Capital Stock,"Section 8.1.
Appears in 1 contract
Conditions of the Agents’ Obligations. Except as may be waived The Agent's obligation to effect the transactions contemplated by ------------------------------------- the Agents, the obligations of the Agents as provided herein this Agreement shall be subject to the continuing accuracy throughout the Offering Period of the representations representations, warranties and warranties contained in Section 2 hereof as agreements of the date hereof and as of the Closing DateCompany, to the performance by the Company of all of its obligations under this Agreement, and the Bank of their obligations hereunder following further terms and to the following conditions:
(a) At The Agent shall have received on any Closing Date hereunder the Closing Date, the Agents shall receive the favorable opinion of ReinhartNelson Mullins Riley & Scarborough LLP, Boerner, Van Dewren, couns▇▇▇▇ ▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇, P.C., special counsel for the Company and the Bank, dated the as of such Closing Date, addressed . Such opinion may be given subject to the Agents with respect to the treatment under applicable law January 1, 1992 edition of the Bank's past Interpretive Standards applicable to Legal Opinion to Third Parties in Corporate Transactions adopted by the Legal Opinion Committee of the Corporate and present practice concerning Banking Law Section of the changing State Bar of interest on loans Georgia (the "Interpretive Standards"), and recent corrective actions with respect thereto, in form and substance reasonably satisfactory to counsel for the Agents and also shall be substantially to the effect that:;
(i) the Company has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of Delaware; the Bank has been organized and is validly existing as a mutual savings bank standing, under the laws of the United States; upon consummation State of Conversion, the Bank will be duly organized and validly existing as a federal stock savings bank; each of the Company and the Bank has, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in the Prospectus;Georgia.
(ii) each of the Company and the Bank has been duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure Units to be so qualified or in good standing in one or more of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole;
(iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened;
(iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries;
(v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bank, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; (vi) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions with respect to the Plan and the Conversion imposed by the Office, except with respect to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with sold by the Company and the Bank in all material respects; and, to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth in the Registration Statement and the Prospectus, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete in all material respects; (viii) the issuance and sale of the Shares have been duly authorized and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shareswill be, upon receipt of issuance and delivery against payment and issuance therefor in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paidpaid and non-assessable and will not be subject to any preemptive or other rights to subscribe for or purchase Units pursuant to the organizational documents of the Company or, nonassessable and free to the best of preemptive rights, and to such counsel's actual knowledge, purchasers otherwise.
(iii) the Company's authorized shares consist of 10,000,000 shares of common stock, $.01 par value, of which 1,469,250 shares are outstanding and 10,000,000 shares of preferred stock, of which 2,000,000 shares are outstanding. The outstanding shares of the Shares from Company's stock have been duly authorized and validly issued, were not issued in violation of any statutory preemptive rights of shareholders, and are fully paid and nonassessable. Except as described in the CompanyPrivate Placement Memorandum, upon issuance thereof against payment thereforthere are no options, will subscriptions, warrants, calls, rights or commitments obligating the Company to issue equity securities or acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; its equity securities.
(ixiv) the certificates for the Shares are in due amounts, terms and proper form and comply with applicable law; (x) the issuance and sale designations of the capital stock of the Bank Company conform as to legal matters in all material respects to the Company have description thereof contained in the Private Placement Memorandum under the caption "Description of Capital Stock".
(v) this Agreement has been duly authorized authorized, executed and delivered by all necessary action of the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledgewhen so executed and delivered, beneficially by constitutes the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, 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 Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank; and this Agreement is a legal, valid and binding obligation of each of the Company and the BankCompany, enforceable against the Company.
(vi) the execution and delivery by Company of this Agreement do not, and if Company were now to perform its obligation under this Agreement such performance would not, result in accordance with its termsany: (1) violation of Company's articles or incorporation or bylaws; (2) violation of any existing federal or state constitution, except as the enforceability thereof may be limited by bankruptcystatute, insolvencyregulation, moratoriumrule, reorganization, receivership, conservatorship or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings and loan holding companies, including the laws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDICorder, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except to the extent that the provisions of Sections 8 and 9 hereof may be unenforceable as against public policy, as law to which no opinion need be rendered;
(xiii) there is no material legal, investigation, regulatory, administrative or governmental investigation, action, suit or proceeding pending or, to such counsel's actual knowledge, threatened against or involving the assets of the Company or the Bank, except as described in the Prospectusits assets are subject; (3) breach of or default under any Material Agreements;
(xiv) the statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition of the Company and the Bank," "Certain Anti-takeover Provisions in the Certificate of Incorporation and Bylaws," "Description of Capital Stock,"
Appears in 1 contract
Sources: Agency Agreement (Ebank Com Inc)
Conditions of the Agents’ Obligations. Except as may be waived The Agent's obligation to effect the transactions contemplated by ------------------------------------- the Agents, the obligations of the Agents as provided herein this Agreement shall be subject to the continuing accuracy throughout the Offering Period of the representations representations, warranties and warranties contained in Section 2 hereof as agreements of the date hereof and as of the Closing DateCompany, to the performance by the Company of all of its obligations under this Agreement, and the Bank of their obligations hereunder following further terms and to the following conditions:
(a) At The Agent shall have received on any Closing Date hereunder the Closing Date, the Agents shall receive the favorable opinion of Reinhart, Boerner, Van Dewren, Nels▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇car▇▇▇▇▇▇▇ ▇▇▇, P.C., special counsel for the Company and the BankCompany, dated the as of such Closing Date, addressed . Such opinion may be given subject to the Agents with respect to the treatment under applicable law January 1, 1992 edition of the Bank's past Interpretive Standards applicable to Legal Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion Committee of the Corporate and present practice concerning Banking Law Section of the changing State Bar of interest on loans Georgia (the "Interpretive Standards"), and recent corrective actions with respect thereto, in form and substance reasonably satisfactory to counsel for the Agents and also shall be substantially to the effect that:
(i) the Company has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of Delaware; the Bank has been organized and is validly existing as a mutual savings bank standing, under the laws of the United States; upon consummation State of Conversion, the Bank will be duly organized and validly existing as a federal stock savings bank; each of the Company and the Bank has, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in the Prospectus;Georgia.
(ii) each of the Company and the Bank has been duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure Shares to be so qualified or in good standing in one or more of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole;
(iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened;
(iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries;
(v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bank, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; (vi) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions with respect to the Plan and the Conversion imposed by the Office, except with respect to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with sold by the Company and the Bank in all material respects; and, to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth in the Registration Statement and the Prospectus, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete in all material respects; (viii) the issuance and sale of the Shares have been duly authorized and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shareswill be, upon receipt of issuance and delivery against payment and issuance therefor in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paidpaid and non-assessable and will not be subject to any preemptive or other rights to subscribe for or purchase Shares pursuant to the organizational documents of the Company or, nonassessable and free to the best of preemptive rights, and to such counsel's actual knowledge, purchasers otherwise.
(iii) the Company's authorized shares consist of 10,000,000 shares of common stock, $.01 par value, of which ten shares are outstanding and 10,000,000 shares of preferred stock, none of which are outstanding. The outstanding shares of the Shares from Company's stock have been duly authorized and validly issued, were not issued in violation of any statutory preemptive rights of shareholders, and are fully paid and nonassessable. Except as described in the CompanyRegistration Statement, upon issuance thereof against payment thereforthere are no options, will subscriptions, warrants, calls, rights or commitments obligating the Company to issue equity securities or acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; its equity securities.
(ixiv) the certificates for the Shares are in due amounts, terms and proper form and comply with applicable law; (x) the issuance and sale designations of the capital stock of the Bank Company conform as to legal matters in all material respects to the Company have description thereof contained in the Registration Statement under the caption "Description of Capital Stock".
(v) this Agreement has been duly authorized authorized, executed and delivered by all necessary action of the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledgewhen so executed and delivered, beneficially by constitutes the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, 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 Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank; and this Agreement is a legal, valid and binding obligation of each of the Company and the BankCompany, enforceable against the Company.
(vi) the execution and delivery by Company of this Agreement do not, and if Company were now to perform its obligation under this Agreement such performance would not, result in accordance with its termsany: (1) violation of Company's articles or incorporation or bylaws; (2) violation of any existing federal or state constitution, except as the enforceability thereof may be limited by bankruptcystatute, insolvencyregulation, moratoriumrule, reorganization, receivership, conservatorship or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings and loan holding companies, including the laws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDICorder, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except to the extent that the provisions of Sections 8 and 9 hereof may be unenforceable as against public policy, as law to which no opinion need be rendered;
(xiii) there is no material legal, investigation, regulatory, administrative or governmental investigation, action, suit or proceeding pending or, to such counsel's actual knowledge, threatened against or involving the assets of the Company or the Bank, except as described in the Prospectusits assets are subject; (3) breach of or default under any Material Agreements;
(xiv) the statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition of the Company and the Bank," "Certain Anti-takeover Provisions in the Certificate of Incorporation and Bylaws," "Description of Capital Stock,"
Appears in 1 contract
Conditions of the Agents’ Obligations. Except as may be waived by ------------------------------------- the Agents, the The obligations of the Agents as provided herein shall be Agent set forth in this Agreement are subject to the accuracy of the representations and warranties contained on the part of the Company in Section 2 hereof as of all material respects on the date hereof and as of at the Closing DateClosing, to the performance by the Company and the Bank of their its obligations hereunder in all material respects, and to the satisfaction of the following conditionsfurther conditions at the Closing:
(a) At The Company shall furnish to the Agent at the Closing Date, the Agents shall receive the favorable an opinion of ReinhartElias, BoernerMatz, Van Dewren, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP, P.C., special counsel for the Company and the Bank, addressed to the Agent and dated the Closing Date, addressed to the Agents with respect to the treatment under applicable law of the Bank's past Date and present practice concerning the changing of interest on loans and recent corrective actions with respect thereto, in form and substance reasonably satisfactory to Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel for the Agents and also to the effect Agent, stating that:
(i1) the Company has an authorized capitalization as set forth in the Prospectus under the caption "Description of Capital Stock"; the outstanding common shares of the Company and the Bank have been duly and validly authorized and issued and are fully paid and non-assessable, and all of the outstanding shares of capital stock of the Bank are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (a) securities or obligations of the Company or the Bank convertible into or exchangeable for any capital stock of the Company or the Bank, (b) warrants, rights or options to subscribe for or purchase from the Company or the Bank any such capital stock or any such convertible or exchangeable securities or obligations, or (c) obligations of the Company or the Bank to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(2) the Company and the Bank each has been duly organized and incorporated and is validly existing as a corporation in good standing under the laws of Delaware; its respective jurisdiction of incorporation with full corporate power and authority to own its respective properties and to conduct its respective business as described in the Registration Statement and Prospectus and, in the case of the Company, to execute and deliver this Agreement and to consummate the transactions described in this Agreement;
(3) the Company is registered as a unitary savings and loan holding company under the Home Owners' Loan Act of 1933, and the Bank's deposit accounts are insured up to applicable limits by the Federal Deposit Insurance Corporation;
(4) the Company and the Bank has been organized are duly qualified to do business, and is validly existing as are in good standing, in each jurisdiction in which they conduct their respective businesses and in which the failure, individually or in the aggregate, to be so licensed could have a mutual savings bank under material adverse effect on the laws of the United States; upon consummation of Conversionassets, the Bank will be duly organized and validly existing as a federal stock savings bank; each business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Bank hastaken as a whole, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) each of the Company and the Bank has been are duly qualified to do business qualified, and is are in good standing as a foreign corporation standing, in each jurisdiction in which they own or lease real property or maintain an office and in which such qualification is necessary except where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure to be so qualified or and in good standing in one or more of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole;
(iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened;
(iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries;
(v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bankassets, taken as a wholebusiness, and all such licensesoperations, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; earnings, prospects, properties or condition (vifinancial or otherwise) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions with respect to the Plan and the Conversion imposed by the Office, except with respect to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with by the Company and the Bank taken as a whole; except as disclosed in all material respectsthe Prospectus, the Bank is not prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to the Bank's capital stock or from repaying to the Company, any amounts which may from time to time become due under any loans or advances to the Bank from the Company, or from transferring the Bank's property or assets to the Company; andother than as disclosed in the Prospectus, the Company does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other association;
(5) to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth are in the Registration Statement and the Prospectus, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete compliance in all material respects; respects with all applicable laws, orders, rules, regulations and orders, including those relating to transactions with affiliates;
(viii6) the issuance and sale of the Shares have been duly and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shares, upon receipt of payment and issuance in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paid, nonassessable and free of preemptive rights, and to such counsel's actual knowledge, purchasers of neither the Shares from the Company, upon issuance thereof against payment therefor, will acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; (ix) the certificates for the Shares are in due and proper form and comply with applicable law; (x) the issuance and sale of the capital stock of Company nor the Bank is in breach of, or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default tinder), any license, indenture, mortgage, deed of trust, loan or credit agreement or any other agreement or instrument to which the Company or the Bank is a party or by which any of them or their respective properties may be bound or affected or under any law, regulation or rule or any decree, judgment or order applicable to the Company have been duly authorized by all necessary action of or the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledge, beneficially by the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, 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 Shares and the consummation of the ConversionBank, except as may be required under the securities such breaches or blue sky laws of various jurisdictions (as to defaults which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby would not have been duly and validly authorized by all necessary action a material adverse effect on the part of each assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Bank taken as a whole;
(7) the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the articles of incorporation, charter or bylaws of the Company or the Bank, (ii) any provision of any material license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument known by such counsel and to which the Company or the Bank is a party or by which any of them or their respective properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to the Company or the Bank or any of their respective properties or assets, or (iv) any decree, judgment or order known to such counsel to be applicable to the Company or the Bank; and or (B) to such counsel's knowledge, result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the Company or the Bank;
(8) this Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding obligation of each agreement of the Company and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, receivership, conservatorship moratorium or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings generally, and loan holding companies, including the laws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDIC, or by general equity principles, regardless principles of whether such enforceability is considered in a proceeding in equity or at lawequity, and except to that enforceability of the extent that the indemnification and contribution provisions set forth in Section 9 of Sections 8 and 9 hereof this Agreement may be unenforceable as against limited by the federal or state securities laws of the United States or public policy, as to which no opinion need be renderedpolicy underlying such laws;
(xiii9) there no approval, authorization, consent or order of or filing with any federal or state governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement, the consummation of the transactions contemplated hereby, and the sale and delivery of the Shares by the Company as contemplated hereby, other than such as have been obtained or made under the Securities Act and the Securities Act Regulations, and except that such counsel need express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Agent or any approval of the underwriting terms and arrangements by the NASD;
(10) to such counsel's knowledge, each of the Company and the Bank has all necessary material legalcertificates, investigationpermits, regulatorylicenses, administrative authorizations, consents and approvals and has made all necessary filings required under any federal, state or governmental investigationlocal law, actionregulation or rule, suit and has obtained all necessary authorizations, consents and approvals from other persons, required to conduct their respective businesses, as described in the Prospectus; to such counsel's knowledge neither the Company nor the Bank is in violation of, in default under, or proceeding pending has received any notice regarding a possible violation, default or revocation of any such material license, authorization, consent or approval or any federal, state, local or foreign law, regulation or decree, order or judgment applicable to the Company or the Bank;
(11) the Shares have been duly authorized and when the Shares have been issued and duly delivered against payment therefor as contemplated by this Agreement, the Shares will be validly issued, fully paid and nonassessable, and the Agent will acquire the good and marketable title to the Shares, free and clear of any pledge, lien, encumbrance, security interest, or other claim;
(12) the issuance and sale of the Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the articles of incorporation or bylaws of the Company, or under any agreement known to such counsel to which the Company or the Bank is a party or, to such counsel's actual knowledge, otherwise;
(13) there are no persons known to such counsel with registration or other similar rights to have any equity securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act, except for those registration or similar rights which have been waived with respect to the offering contemplated by this Agreement;
(14) the Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus;
(15) the form of certificate used to evidence the Common Shares complies in all material respects with all applicable statutory requirements, with any applicable requirements of the articles of incorporation and bylaws of the Company and the requirements of the Nasdaq National Market;
(16) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued and, to such counsel's knowledge, no proceedings with respect thereto have been commenced or threatened;
(17) as of the effective date of the Registration Statement, the Registration Statement and the Prospectus (except as to the financial statements and other financial and statistical data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations;
(18) the statements in the Registration Statement and the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects;
(19) to such counsel's knowledge, there are no actions, suits or proceedings, inquiries, or investigations pending or threatened against the Company or involving the Bank or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which are required to be described in the Prospectus but are not so described;
(20) there are no contracts or documents of a character which are required to be filed as exhibits to the Registration Statement or required to be described or summarized in the Prospectus which have not been so filed, summarized or described, and all such summaries and descriptions, in all material respects, fairly and accurately set forth the material provisions of such contracts and documents;
(21) to such counsel's knowledge, the Company and the Bank own or possess adequate license or other rights to use all patents, trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, manufacturing processes, other intangible property rights and know-how (collectively "Intangibles") necessary to entitle the Company and the Bank to conduct its business as described in the Prospectus, and neither the Company, nor the Bank, has received notice of infringement of or conflict with (and knows of no such infringement of or conflict with) asserted rights of others with respect to any Intangibles which could materially and adversely affect the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of the Company or the Bank, except as described in the Prospectus;; and
(xiv22) the statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition to such counsel's knowledge, each of the Company and the Bank," "Certain Anti-takeover Provisions Bank has filed on a timely basis all necessary federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof and have paid all taxes shown as due thereon; and no tax deficiency has been asserted against any such entity, nor does any such entity know of any tax deficiency that is likely to be asserted against any such entity which, if determined adversely to any such entity, could materially adversely affect the business, prospects, properties, assets, results of operations or condition (financial or otherwise) of any such entity, respectively. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, independent public accountants of the Company and representatives of the Agent, at which the contents of the Registration Statement and Prospectus were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Certificate Registration Statement or Prospectus (except as and to the extent stated in subsections (14), (18), and (20) above), they have no reason to believe that the Registration Statement or the Prospectus, as of Incorporation their respective effective or issue dates, and Bylaws," "Description as of Capital Stock,"the date of such counsel's opinion, contained or contains an untrue statement of a material fact or omitted or omits 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 made, not misleading (it being understood that, in each case, such counsel need express no view with respect to the financial statements and other financial and statistical data included in the Registration Statement or the Prospectus).
(b) The Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ letters dated, respectively, as of the date of this Agreement and the Closing, addressed to the Agent, in form and substance satisfactory to the Agent, relating to the financial statements, including any pro forma financial statements, of the Company and such other matters customarily covered by comfort letters issued in connection with registered public offerings.
(c) No amendment or supplement to the Registration Statement or Prospectus shall have been filed to which the Agent shall have objected in writing.
(d) Prior to the Closing (1) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus has been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, has occurred; and (2) the Registration Statement and the Prospectus shall not contain an untrue statement of 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 made, not misleading.
(e) Between the time of execution of this Agreement and the Closing, (1) no material and unfavorable change in the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Bank taken as a whole shall occur or become known (whether or not arising in the ordinary course of business), and (2) no transaction that is material and unfavorable to the Company shall have been entered into by the Company or the Bank.
(f) The Shares shall have been approved for inclusion in the Nasdaq National Market.
(g)
Appears in 1 contract
Sources: Sales Agency Agreement (Peoples Community Bancorp Inc /Md/)