Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects. (iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act. (vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank. (vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank. (x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed. (xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion. (xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval. (xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission. (xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications. (xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940. (xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991). (2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇. (4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 2 contracts
Sources: Agency Agreement (Fairmount Bancorp, Inc.), Agency Agreement (Fairmount Bancorp, Inc.)
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are in this Agent Agreement shall be subject to the condition that all representations accuracy of and warranties of the Primary Parties herein contained arecompliance with, at and as of the commencement date hereof, and on each closing date for the sale of the Offering and at and as of the Closing Date, true and correctCommon Shares, the condition that representations, covenants, and warranties contained in Sections 4 and 6 hereof, the Primary Parties shall have performed all performance by the Company of their its obligations hereunder to be performed on or before such dates hereunder, and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinionreceived on or before the commencement date for the Offering an opinion from Paine, dated as of the Closing DateHamblen, of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ acceptable to & ▇▇▇▇▇▇ LLP, Spokane, Washington (the Agent, “Company Counsel”) satisfactory in form and substance satisfactory to the Agent and counsel for the Agent its counsel, to the effect that:
(i) The Holding Upon the commencement date of the Offering, the Company is will be a corporation duly organized and validly existing and company in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States State of AmericaAlaska, with full power fully authorized to transact the business in which it is engaged, and authority authorized to own its properties enter into this Agent Agreement;
(ii) The Common Shares, Warrants and to conduct its business Common Shares issuable upon exercise of the Warrants when issued and sold will be validly and legally issued and the offering of the Common Shares, Warrants and Common Shares will be as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has Memorandum have been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.;
(iii) The activities Offering will not result in the breach of any of the Holding Company and the Bankterms or conditions of, as described in the Prospectusor constitute a default under any loan commitment, are permitted by federal law. To agreement, or other instrument of which such counsel’s knowledge, each of the Holding Company and the Bank counsel has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, knowledge and to such counselwhich the Company is a party or violate any order of any court or any federal or state regulatory body or administrative agency having jurisdiction over the Company or over the Company’s knowledge the Holding Company and the Bank are complying therewith in all material respects.property;
(iv) The Bank To the best knowledge of such Company Counsel, upon reasonable inquiry, there is not in existence, pending nor threatened any action, suit or proceeding to which the Company or any director thereof is a member party, except as may be set forth in the Memorandum or any supplement thereto, before any court or governmental agency or body, which action, suit or proceeding might, if decided adversely, materially affect the subject matter of this Agent Agreement, the Offering or the financial condition, business or prospects of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.Company;
(v) The authorized capital stock disclosures to be made in the Memorandum, together with the Company’s offer to each subscriber to provide access to additional information, are sufficient to satisfy the “information requirements” of Rule 502 of Regulation D assuming the receipt by each subscriber of a copy of the Bank consists of one million Memorandum;
(1,000,000vi) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary Act of the Holding Company at Securities is not required for the Closing Date is offer and sale thereof to the Bank.investors in accordance with the provisions of this Agreement
(vii) Upon consummation In rendering the opinions to be set forth, the Company Counsel, as to factual matters, may rely upon certificates, statements, letters, representations or affidavits of the ConversionCompany and its officers, (a) the authorized, issued and outstanding capital stock any public records of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to and letters of independent certified public accountants.
(b) The Agent together with will receive on the opinion to be rendered hereunder by special counsel to commencement of the Primary Parties. The opinion of such counsel for Offering, a certificate from the Primary Parties shall state that it has no reason to believe Company stating that the representations and warranties made in this Agent is not reasonably justified in relying thereon. The opinion Agreement are true and correct, as if made on the commencement date of such counsel for the Primary Parties also shall Offering; the certificate further will state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form Company has complied with all agreements and substance to the effect that during the preparation of the Registration Statement covenants and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains Memorandum does not include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)misleading.
(3c) The favorable opinion, dated as Agent will receive on the commencement date of the Closing Date, Offering a survey prepared by Company Counsel and addressed to the Company and to the Agent relating to the securities laws of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect jurisdictions in which the Company and the Agent have agreed to such matters make offers to potential investors. This survey shall be referred to as the “Blue Sky Survey.” Company Counsel and the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and shall agree upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance statements to be made in the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativesBlue Sky Survey.
Appears in 2 contracts
Sources: Placement Agent Agreement (Little Squaw Gold Mining Co), Placement Agent Agreement (Little Squaw Gold Mining Co)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Issuer contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Primary Parties Issuer shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(ae) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1f) The opinionthe Offered Shares shall have been conditionally approved for listing on the CSE, dated as and the Agent shall have received evidence of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the Bank to representations or warranties contained herein; (ii) the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part fulfillment of any of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim conditions contained herein; or restriction.
(iii) The activities the accuracy and completeness of the Holding Company and the Bank, as described any information contained in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of ;
(h) the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are ATM Decisions shall remain in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant without amendment adverse to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, Issuer or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).Agent; and
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting there shall not have occurred any event, matter or circumstance that would permit the invalidity of Agent to terminate this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 2 contracts
Sources: Equity Distribution Agreement, Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall not contain any misrepresentation and shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Entity shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Company, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Company contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date or is updated, qualified or clarified as permitted by Section 4.7 or Section 9.3, unless the Primary Parties Agent has notified the Company that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update, qualification or clarification;
(e) the Company shall have performed complied in all of their obligations hereunder material respects with all agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinionthe Offered Shares shall have been conditionally approved for listing on the TSXV, dated as and the Agent shall have received evidence of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, same in form and substance satisfactory to the Agent, acting reasonably, and the Common Shares shall not have been suspended on the TSXV;
(h) the Company shall have delivered or caused to be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition information contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required documents incorporated (or deemed to be stated therein and incorporated) by reference therein; and
(i) there shall not have occurred any event, matter or circumstance that would permit the statements contained therein and, although (without limiting the opinions provided Agent to terminate this Agreement pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement (Vizsla Silver Corp.)
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been issued under the 1933 Act or and no proceedings therefor initiated for that purpose shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Lead Agent.
(A) No downgrading shall have occurred nor any notice given of any intended downgrading in the rating accorded the Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission or any state authority and no order or other action suspending for purposes of Rule 436(g)(2) under the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental bodySecurities Act.
(b) At Subsequent to the Closing Datedate of this Agreement and each Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is, in the judgment of the Lead Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, in form and substance satisfactory to including in-house counsel, dated the Agent and counsel for the Agent Closing Date, to the effect that:
(i) The Holding the Company has been duly incorporated and is validly existing as a corporation duly organized and validly existing and in good standing under the laws of the State of MarylandDelaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus JPMorgan Chase Bank has been duly incorporated and is duly qualified to transact business and is validly existing as a banking corporation in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States State of AmericaNew York, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion ;
(ii) each Indenture has been duly and validly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iii) the Securities have been duly authorized by all necessary corporate action on the part Company and, when the terms of the Holding Company Securities and the Bank and, upon payment therefor of their issue and sale have been duly established in accordance with the relevant Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the relevant Indenture except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) the issue and sale of the Securities and the compliance by the Company with all the provisions of the Securities, the Indentures and this Agreement, will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any Federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(v) no consent, approval, authorization, order, registration or qualification of or with any Federal or New York state court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) the statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of the Securities and the Indenture, constitute accurate summaries of the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company Securities and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith Indenture in all material respects.;
(ivvii) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution Registration Statement has become effective under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or; and, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, or threatened by the Commission; and
(viii) to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences there are no contracts or documents of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ a character required to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained be described in the Registration Statement and the Prospectus, and the form of certificate or Prospectus or to be used filed as exhibits to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, therein which violation would have a Material Adverse Effect. In addition, the execution are not described and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, file or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991)required.
(2ix) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, although such counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained made or included in the Registration Statement or the Prospectus except those statements describing the Securities and Prospectusthe Indentures, on the basis such counsel, based upon its due diligence review of the foregoingaffairs of the Company, nothing as described in such opinion, has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ no reason to believe that either the Registration Statement at or the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or Prospectus contains any an untrue statement of a material fact or omitted omits to state any a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood except that counsel no opinion need express no comment or opinion with respect be expressed as to (a) financial statements, notes to financial statements, schedules statements and other financial and statistical data includeddata, or statistical or appraisal methodology employed, (b) statements made in the Registration StatementProspectus concerning taxation, or Prospectus or General Disclosure Packageprovided that such statements are covered by the opinion of counsel for the Agents delivered pursuant to Section 6(f) hereto and (c) statements made in the Form T-1 Statement of Eligibility and Qualification of the Trustees); and
(x) this Agreement has been duly authorized, executed and delivered by the Company.
(3d) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(e) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(f) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 6 shall be delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
, not later than 10:00 a.m., New York City time, on the date of this Agreement or at such time as may be mutually agreed by the Company and the Lead Agent, which in no event shall be later than the time at which the Agents commence solicitation of purchasers of Securities hereunder, the time and date of such delivery being herein called the “Closing Date”. The Company will furnish each Agent with such conformed copies of such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine (4x) The letter to increase pursuant to and in accordance with the terms and provisions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP the Indentures, the aggregate principal amount of the Securities that may be authenticated and delivered under the Indentures and/or (y) to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the date on which any such supplements or amendments to the Prospectus or the Registration Statements, or any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the Company and the Lead Agent, deliver or cause to be delivered to each Agent and its counsel the opinions, certificates, letters and other documents required to be delivered pursuant to paragraphs (c), (d), (e) and (f) of this Section 6, and (iii) if applicable, deliver to each Agent a certificate, dated the date each of the other certificates delivered pursuant to clause (ii) above are being delivered, and executed by the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any other Executive Officer of the Company, reaffirming each of the representations and warranties of the Company set forth in Section 2 with respect to any registration statement and any prospectus included in such registration statement filed after the date hereof relating to the Securities. For purposes of the documents required to be delivered pursuant to the preceding paragraph, the term “Registration Statement” shall be deemed to refer to the Registration Statement referred to in Section 2(a), together with any such additional registration statement or registration statements relating to the Securities, in each case as amended or supplemented; the term “Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers ” shall refer to the Prospectus as so amended or supplemented; and the term “Closing Date” shall be deemed to refer to the date on which the requirements under the preceding paragraph are satisfied. As of and other representatives after the requirements of the Primary Partiespreceding paragraph are satisfied, counsel the foregoing terms shall be deemed to be so amended for all purposes of this Agreement. In the case of Additional Agents, the conditions set forth in paragraphs (c), (d), (e) and (f) of this Section 6 shall be deemed satisfied by the delivery of copies of the documents delivered to the Primary Parties, representativesAdditional Agents pursuant to such paragraphs on the Closing Date.
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application shall have been approved by the OCC and the Holding Company Application shall have been approved by the OTSFederal Reserve Board, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTSOCC, the Federal Reserve Board, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse EffectExhibit C hereto. The opinion may be limited to matters governed by the laws of the United States States, the State of New York and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or the Prospectus or the General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Spidi & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, PC, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C.
(4) The letter of Spidi & ▇▇▇▇▇, PC in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Spidi & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP , PC participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativesrepresentatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), Spidi & ▇▇▇▇▇, PC has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Spidi & ▇▇▇▇▇, PC that caused Spidi & ▇▇▇▇▇, PC to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package).
(5) A Blue Sky Memorandum from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the offering, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & Babitts, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in ▇▇▇▇▇▇▇▇▇▇ & Babitts’s opinion the financial statements of the Association included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of any unaudited interim financial statements of the Association prepared by the Primary Parties as of and for any interim periods ended subsequent to March 31, 2012, a reading of the minutes of the meetings of the Board of Directors and Audit Committee of the Association and consultations with officers of the Association responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) any such unaudited financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, adversely classified assets, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Association or decrease in assets, deposits, loan losses allowance, equity or retained earnings of the Association or there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses or increase in the provision for loan losses or interest expense of the Association for the period commencing immediately after the Recent Developments period and ending not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Association, which are subject to the internal controls of the accounting system of the Association and other data prepared by the Association directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding). On or prior to the date on which any Issuer-Represented Free Writing Prospectus is first used, upon the request of the Agent, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ similar to the letter, or letters, referenced above in this Section 10(c) addressing the financial and statistical information contained in such Issuer-Represented Free Writing Prospectus.
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇▇▇▇▇ & Babitts dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, to the effect that: (i) they have examined the Registration Statement and at the time the Registration Statement became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date including the conditions contained in this Section 10; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, the Conversion, the acquisition of all of the shares of the Association by the Holding Company, the transactions required under the Plan to consummate the Conversion or the effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OCC, the Federal Reserve Board, the Commission or any other federal or state authority; and (vii) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan or to enjoin the Conversion.
(g) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇, dated as of the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition or in the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, from and 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 transaction entered into by the Primary Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) neither of the Primary Parties shall have received from the OCC, the FDIC, or the Federal Reserve Board any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither of the Primary Parties shall have been in default (nor shall an event
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Issuer contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, and the Primary Parties Issuer shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(ae) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1f) The opinionthe Offered Shares shall have been conditionally approved for listing on the TSX, dated as and the Agent shall have received evidence of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, same in form and substance satisfactory to the Agent (acting reasonably);
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; and or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition information contained in the Prospectus; and
(h) there shall not have occurred any contractevent, indenture, mortgage, loan agreement, note, lease matter or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation circumstance that would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that permit the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided terminate this Agreement pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement
Conditions to Agent’s Obligations. The Agent's obligations of hereunder, as to the Agent hereunder Shares to be delivered at the Closing Date and the occurrence of the Closing and the Conversion Reorganization, are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering Subscription and PublicCommunity Offerings and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties shall have performed in all material respects all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion MHC Notice and Application and approved by the OTS prior to the commencement of the Offering, the Holding Company Application shall have been approved by the OTSapproved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Reorganization shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the OTS, the Commission Commission, or any other governmental body.
(b) At the Closing Date, the MHC, the Holding Company and the Association will have completed the conditions precedent to, and shall have conducted the Reorganization in all material respects in accordance with, the Plan, the Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the OTS.
(c) At the Closing Date, Agent shall have received:
(1) The favorable opinion, dated as of the Closing DateDate addressed to Agent and for its benefit, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ acceptable to ▇▇▇▇, LLP ("S&P") counsel for the AgentParties, in form and substance satisfactory acceptable to Agent . S&P shall also provide a letter dated as of the Closing Date addressed to Agent which states that, with respect to the opinion of such counsel nothing has come to the attention of S&P that would lead S&P to believe that Agent and its counsel for the Agent are not justified in relying upon such opinion. The opinions of S&P shall in form and substance be to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the State United States of MarylandAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Parties.
(ii) The Bank Mutual Holding Company has been incorporated and is validly existing as a federally chartered mutual savings bank incorporated holding company in good standing under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full States.
(iii) The Mutual Holding Company has corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the OTS Applications and the Prospectus; .
(iv) The Association was organized and is a validly existing federally-chartered savings and loan association in mutual form of organization and upon the activities Reorganization will become an organized and validly existing federally-chartered savings bank in capital stock form of the Bank organization, in both instances duly authorized to conduct its business and own its property as described in the Prospectus OTS Applications and the Association has corporate existence under the laws of the United States. The activities of the Association as described in the Prospectus, insofar as they are material to the operations and financial condition of the Association, are permitted by federal law the rules and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank Association to the Holding Company in the Conversion Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank Association and, upon payment therefor therefore in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iiiv) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank Association is a member of the FHLB of Atlanta. The Bank is an insured depository institution under New York, the provisions deposit accounts of the Federal Deposit Insurance Act, as amendedAssociation are insured by the FDIC up to the maximum amount allowed under law, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the federal deposit insurance description of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) liquidation account as set forth in the Application and the Prospectus under the caption "The authorized capital stock Reorganization - Effects of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, Reorganization on Depositors and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant Borrowers - Liquidation Rights" to the Planextent that it constitutes matters of law, shares summaries of legal matters, documents, proceedings or legal conclusions has been reviewed by such common stock will be owned beneficially counsel and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actis accurate in all material respects.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at On the Closing Date is the Bank.
(vii) Upon consummation of the ConversionDate, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in as set forth in the Application and the Prospectus under the caption “"Capitalization,” " and to such counsel's knowledge no shares of Common Stock have been or will be issued and outstanding prior to the Closing DateDate (except for shares issued to the MHC upon incorporation of the Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC have been duly and validly authorized for issuance and will be fully paid and nonassessable; at the time of the Reorganization, the Shares to be subscribed for in pursuant to the Offering Subscription and PublicCommunity Offerings and the Shares issued to the Mutual Holding Company will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company Association 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 nonassessablenon-assessable, provided, however, that Shares issued to the Mutual Holding Company may be subject to restrictions on resale and possible subscription rights of the Association's depositors in accordance with the Reorganization Regulations, and provided further that no opinion need be rendered as to security interests or pledges granted by the purchasers of such Shares; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Planrights.
(viiivii) The execution and delivery of this Agreement Agreement, and the consummation performance by the Parties of the transactions contemplated hereby their obligations hereunder, have been duly validly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes is a valid, legal valid and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, terms (except to as the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability thereof may be limited by bankruptcy lawsbankruptcy, insolvency lawsinsolvency, moratorium, reorganization or other similar laws relating to or affecting the enforcement of creditors’ ' rights generally, generally or the rights of creditors of savings institutions insured or savings and loan holding companies, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as the FDIC (including laws and judicial decisions relating to the rights obligations of the contracting parties Parties under the indemnification provisions of Sections 9 and 10 hereof may be limited by law or unenforceable as against public policy, as to equitable remedieswhich, no opinion need be expressed).
(ixviii) The Plan has been duly adopted by the Board of Directors required vote of the Holding Company Directors and the Bank and has been approved by the members of the Bank Association in the manner required by the Conversion Reorganization Regulations and the Association's respective charter and bylaws bylaws, provided, however, that as to the tally of votes, such counsel may rely upon the certificate of the Bankinspectors of election.
(xix) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect Subject to the Conversion imposed by satisfaction of the conditions to the OTS, 's approval of the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application Reorganization and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvalsApplication, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, Shares and the consummation of the ConversionReorganization, except as may be required under Blue Sky laws, (as to which no opinion need be rendered) or the regulations of the NASD and the NASDAQ Stock Market (as to which no opinion need be rendered). The Reorganization has been consummated in all material respects in accordance with all applicable provisions of the HOLA and the Reorganization Regulations.
(xiix) The purchase OTS Applications including the Prospectus as filed with the OTS were complete as to form in all material respects and have been approved by the OTS. The OTS has approved the Application and the Holding Company Application under the HOLA, and the issuance of all of the issued and outstanding common capital stock of the Bank Association and the purchase thereof by the Holding Company as described in the Prospectus has been authorized by the OTSOTS and to such counsel's knowledge, and no action has been taken taken, or to counsel's knowledge is pending or threatened threatened, to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvixi) At the time the Applications were approved and as of OTS Applications, including the Closing DateProspectus contained therein, was approved, the OTS Applications including the Prospectus contained therein (as amended or supplemented), the Prospectus (as if so amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, federal laws and the rules and regulations and decisions and orders of the OTS, OTS (except as modified or waived in writing (other than to the financial statements, notes to financial statements, financial tables and other financial and statistical data and stock valuation and pro forma information included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion); to such counsel's knowledge, all material documents and exhibits required to be filed with the OTS Applications (as amended or supplemented, if so amended or supplemented) have been so filed. The description in the OTS Applications and the Prospectus contained therein of such documents and exhibits is accurate in all material respects.
(xii) To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the ApplicationsApplication or the Holding Company Application.
(xviixiii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened.
(xiv) The terms and provisions of the Common Stock of the Holding Company conform to the description thereof contained in the Registration Statement, the OTS Applications and the Prospectus, and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions "Restrictions on Acquisition of the Company and the Bank - Absence of Cumulative Voting" and " - Authorization of Preferred Stock" and " - Restrictions on Acquisition of Securities" and "Description of Capital Stock of the Company," to the extent that they constitute matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form of certificate used to evidence the Shares is in due and proper form.
(xv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened asserting the invalidity of this Agreement, seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or which are required to be disclosed in the OTS Applications and the Prospectus, other than those disclosed therein; provided, that for this purpose, 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 Association, or to such counsel, a present intention to initiate such litigation or proceeding.
(xvi) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xixxvii) The information in the OTS Applications and Prospectus under the captions “Summary,” “Supervision and "Regulation,” “" "The Reorganization-Tax Effects," "Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “" and "Description of Capital Stock” and “The Conversion and Offering,” Stock of the Company" to the extent that such information it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate correct in all material respects.
respects (xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) except as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the financial statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Packageand stock valuation and pro forma data included therein as to which such counsel need express no opinion).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyJ.▇. ▇▇▇▇▇▇ Securities LLC.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any 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 not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& B▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws of the State of MarylandDelaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing as a national banking association under the laws of the United States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles Trust Indenture Act of incorporation or bylaws of 1939, as amended (the Holding Company“Trust Indenture Act”), or arising or outstanding by operation of law or under any contractand, indenture, agreement, instrument or other document known to such counsel, except for assuming that each Indenture is the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the rights Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of creditors its subsidiaries or any of savings institutions insured their properties;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the FDIC (including laws Company, the execution, delivery and judicial decisions relating to compliance by the rights Company with all the provisions of this Agreement and the execution and delivery by the Company of the contracting parties to equitable remedies).Indentures except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(ixvi) The Plan has been duly adopted by statements made in the Board of Directors Prospectus under the captions “Description of the Holding Company Notes” and the Bank and has been approved by the members “Description of Debt Securities”, insofar as they purport to constitute summaries of certain terms of the Bank in the manner required by the Conversion Regulations and the charter and bylaws documents referred to therein, constitute accurate summaries of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties terms of such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof which are to be described in [Term Sheets and] Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act and the Prospectus was filed on October 21, 2010, pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Securities Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Securities Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables statements or other financial and or statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion)contained in, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal incorporated or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act Documents; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that (a) the Registration Statement at (including the time it was declared effective by Exchange Act Documents and the Commission and Prospectus deemed to be a part thereof), as of the date of such letter the most recent Annual Report on Form 10-K or that Quarterly Report on Form 10-Q, as applicable, was filed with the General Disclosure Package as of the Applicable TimeCommission, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to the financial statements, notes to financial statements, schedules and statements or other financial and or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at 2▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) , on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter Company will furnish each Agent with such conformed copies of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 4(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel date on which any such supplements or amendments to the Primary PartiesProspectus or the Registration Statements, representativesor any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the Company and such Agents, deliver to each Agen
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of an Agent, as agent of the Agent hereunder Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent’s discretion, to the conditions that:
(a) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (i) on the Commencement Date; (ii) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (iii) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (iv) at and as of the commencement of the Offering and each Applicable Time, (v) at and as of the Closing each Settlement Date, true and correct(vi) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be,
(b) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed on or before such dates and to the following further conditions:performed,
(ac) The Registration Statement all requests for additional information on the part of the Commission shall have been declared effective by complied with to the Commission reasonable satisfaction of such Agent,
(d) there shall be in full force and effect orders of the OPUC and the Conversion Application WUTC which permit the issuance and Holding Company Application shall have been approved by sale of the OTS, Securities in accordance with the terms and conditions of this Agreement,
(e) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary PartiesCompany contemplated by, threatened by the Commission Commission, and
(f) there shall not have occurred: (i) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the New York Stock Exchange or any state authority and no order relevant exchange or a material disruption in securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other action suspending calamity or crisis or material adverse change in national financial or economic conditions, in each case, the authorization for use effect of which, in the Prospectus reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the consummation purchase of Securities from the Conversion Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (iv) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been issuedgiven of any intended or potential downgrading, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened Securities by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ either ▇▇▇▇▇’▇ acceptable Investors Service or Standard & Poor’s Rating Services. In addition to the Agentforegoing, the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counselAgent’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United Statesdiscretion, to the extent such counsel deems proper and specified in such opinionfurther condition that there shall not have been, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and any Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Lead Agent.
(ii) (A) No downgrading shall have occurred in the rating accorded the Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (B) no such organization shall have publicly announced that it has under surveillance or any state authority and no order review, or other action suspending the authorization for use has changed its outlook with respect to, its rating of the Prospectus Securities or the consummation of the Conversion shall have been issued, any other debt securities or proceedings therefor initiated or, to the knowledge preferred stock of the Primary Parties, threatened or guaranteed by the OTS, the Commission or any Company (other governmental bodythan an announcement with positive implications of a possible upgrading).
(b) At Subsequent to the Closing Datedate of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of the Lead Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, in form and substance satisfactory to including in-house counsel, dated the Agent and counsel for the Agent Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles of incorporation or bylaws of Trust Indenture Act, and, assuming that each Indenture is the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the respective Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the rights Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of creditors its subsidiaries or any of savings institutions insured their properties;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the FDIC Company, the execution, delivery and compliance by the Company with all provisions of this Agreement and the execution and delivery by the Company of the Indentures, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(including laws vi) The statements made in the Prospectus under the captions “Description of the Notes” and judicial decisions relating “Description of Debt Securities”, insofar as they relate to the rights Securities and purport to constitute summaries of certain terms of the contracting parties documents referred to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors therein, constitute accurate summaries of the Holding Company and the Bank and has been approved by the members terms of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof which are to be described in supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xivd) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Datedeemed incorporated by reference in, or omitted from, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Exchange Act and the 1933 Act Regulations.Documents; and
(xviiiii) There are no legal or governmental proceedings pending, or, nothing has come to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent attention that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by causes such counsel and is accurate in all material respects.
to believe that (xxa) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in Registration Statement (including the Investment Company Exchange Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation Documents incorporated or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement therein and the Prospectus and related matters were discussed and has considered the matters required deemed to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)a part thereof), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of its date, was filed with the date of such letter or that the General Disclosure Package as of the Applicable TimeCommission, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of its date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made made, not misleading (it being understood misleading, except that counsel need express expresses no comment belief in any of clauses (a) or opinion (b) above with respect to the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employedomitted from, in the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3e) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(f) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(g) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 6 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) ▇ on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter Company will furnish each Agent with such conformed copies of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel date on which any such supplements or amendments to the Primary PartiesProspectus or the Registration Statements, representativesor any additional registration statements, shall be filed by the Company with the Commission under the Act and shall ha
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of ongoing due diligence reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Corporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Corporation contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, (or is updated as permitted by Section 4.7 or 9.3);
(e) the Primary Parties Corporation shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 8.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinion, dated as the Corporation shall have duly notified the CSE of the Closing Date, issuance of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable the Placement Shares and the CSE shall not have objected thereto or denied the listing thereof;
(h) the Corporation shall have delivered or caused to the Agent, in form and substance satisfactory be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition information contained in the Prospectus; and
(i) there shall not have occurred any contractevent, indenture, mortgage, loan agreement, note, lease matter or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation circumstance that would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that permit the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided terminate this Agreement pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent Agents hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agents of ongoing due diligence reviews satisfactory to the Agents in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agents, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agents and the Agents’ counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agents, acting reasonably, object;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Corporation,
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Corporation contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date (or is updated as permitted by Section 4.7 or 9.3);
(e) the Primary Parties Corporation shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed or satisfied hereunder;
(f) the Agents shall have received all documents required to be delivered or furnished to the Agents pursuant to Section 9.2, in each case on or before the date on which delivery of such dates and document is required pursuant to the following further conditions:this Agreement;
(ag) The Registration Statement the Placement Shares shall have been declared effective by conditionally approved for listing on the Commission and TSX, subject only to fulfilling customary conditions with the Conversion Application and Holding Company Application TSX; and
(h) the Corporation shall have been approved by the OTS, and no stop order delivered or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, caused to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory be delivered to the Agent and the Agents’ counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements information contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement (Charlotte's Web Holdings, Inc.)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall not contain any misrepresentation and shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Entity shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Company, or (ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Company contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date or is updated, qualified or clarified as permitted by Section 4.7 or Section 9.3, unless the Primary Parties Agent has notified the Company that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update, qualification or clarification;
(e) the Company shall have performed complied in all of their obligations hereunder material respects with all agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinionthe Offered Shares shall have been conditionally approved for listing on the TSXV and the Company shall have applied to list the Offered Shares on the NYSE, dated as and the Agent shall have received evidence of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, same in form and substance satisfactory to the Agent, acting reasonably, and the Common Shares shall not have been suspended on the TSXV or the NYSE;
(h) the Company shall have delivered or caused to be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition information contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required documents incorporated (or deemed to be stated therein and incorporated) by reference therein; and
(i) there shall not have occurred any event, matter or circumstance that would permit the statements contained therein and, although (without limiting the opinions provided Agent to terminate this Agreement pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement (Vizsla Silver Corp.)
Conditions to Agent’s Obligations. The obligations obligation of an Agent, as agent of the Agent hereunder Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent’s discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the Commission reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the OPUC and the Conversion Application WUTC which permit the issuance and Holding Company Application shall have been approved by sale of the OTSSecurities in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary PartiesCompany contemplated by, threatened by the Commission Commission, and (vi) there shall not have occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the New York Stock Exchange or any state authority and no order relevant exchange or a material disruption in securities settlement or clearance services in the United States; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other action suspending calamity or crisis or material adverse change in national financial or economic conditions, in each case, the authorization for use effect of which, in the Prospectus reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the consummation purchase of Securities from the Conversion Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been issuedgiven of any intended or potential downgrading, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened Securities by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ either ▇▇▇▇▇’▇ acceptable Investors Service or Standard & Poor’s Rating Group. In addition to the Agentforegoing, the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counselAgent’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United Statesdiscretion, to the extent such counsel deems proper and specified in such opinionfurther condition that there shall not have been, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental body▇.▇. ▇▇▇▇▇▇ Securities Inc.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any 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 not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws of the State of MarylandDelaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly authorized, executed and validly authorized delivered by all necessary corporate action on the part Company and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, assuming that each Indenture is the valid and legally binding obligation of its Trustee, constitutes a valid and legally binding obligation of the Holding Company and enforceable against the Bank and, upon payment therefor Company in accordance with its terms, subject to the terms effects of the Planbankruptcy, will be validly issuedinsolvency, fully paid fraudulent conveyance, reorganization, moratorium and nonassessable other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and will be owned an implied covenant of record good faith and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.fair dealing;
(iii) The activities Securities have been duly authorized by the Company and, when the terms of the Holding Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the Trustee or JPMorgan Chase Bank, National Association, as described in Authenticating Agent under the Prospectusapplicable Indenture, are permitted by federal law. To such counsel’s knowledge, each on behalf of the Holding Company Trustee in accordance with the provisions of the relevant Indenture, and upon payment and delivery in accordance with this Agreement and the Bank has obtained all licensesapplicable Terms Agreement, permitswill constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the benefits of the applicable Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and other governmental authorizations that are material for the conduct an implied covenant of its business, good faith and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.fair dealing;
(iv) The Bank is a member issue and sale of the FHLB Securities by the Company and the execution, delivery and performance by the Company of Atlanta. The Bank is an insured depository institution under this Agreement and the provisions performance of the Federal Deposit Insurance ActIndentures by the Company will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as amended, and no proceedings for an exhibit to the termination Registration Statement or revocation any of the federal deposit insurance Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Bank are pending orCompany or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that it is understood that no opinion is given in this paragraph (iv) with respect to such counsel’s knowledge, threatened.any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) The authorized capital stock No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Bank consists Securities by the Company and the compliance by the Company with all provisions of one million this Agreement and the Indentures, except that it is understood that no opinion is given in this paragraph (1,000,000v) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When with respect to any federal or state securities law or any rule or regulation issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien federal or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actstate securities law.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth statements made in the Prospectus under the caption captions “Capitalization,Description of Notes” and no shares “Description of Common Stock have been or will be issued and outstanding prior Debt Securities”, insofar as they purport to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment constitute summaries of certain terms of the consideration calculated as set forth in the Plandocuments referred to therein, will be fully paid and nonassessable; and (d) the issuance constitute accurate summaries of the Shares is not subject to preemptive rights under the articles terms of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof which are to be described in [Term Sheets and] Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act; and the Prospectus was filed on November 1, 2007 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences (Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Securities Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Securities Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables statements or other financial and or statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion)contained in, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal incorporated or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act Documents; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that (a) the Registration Statement at (including the time it was declared effective by Exchange Act Documents and the Commission and Prospectus deemed to be a part thereof), as of the date of such letter the most recent Annual Report on Form 10-K or that Quarterly Report on Form 10-Q, as applicable, was filed with the General Disclosure Package as of the Applicable TimeCommission, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading misleading, except that such counsel expresses no belief in either of clauses (it being understood that counsel need express no comment a) or opinion (b) above with respect to the financial statements, notes to financial statements, schedules and statements or other financial and or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
, on November 1, 2007, the time and date of such delivery being herein called the “Closing Date”. The Company will furnish each Agent with such conformed copies of such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine (4x) The letter to increase pursuant to and in accordance with the terms and provisions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP the Indentures, the aggregate principal amount of the Securities that may be authenticated and delivered under the Indentures and/or (y) to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 4(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel date on which any such supplements or amendments to the Primary PartiesProspectus or the Registration Statements, representativesor any additional registration statements, shall be filed by the Company with the Com
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation --------------------------------- of an Agent, as agent of the Agent hereunder Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the Public Utility Commission of Oregon and the Conversion Application Washington Utilities and Holding Company Application shall have been approved by Transportation Commission which are acceptable to the OTSAgents and which permit the issuance and sale of the Securities substantially in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary PartiesCompany contemplated by, threatened the Commission, and (vi) there shall not have occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the Nasdaq National Market or any relevant exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the Commission United States in hostilities or any state authority escalation of hostilities, the effect of which, in the judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and no order in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other action suspending the authorization for use of the Prospectus agreement; or the consummation of the Conversion (D) any downgrading, or any notice shall have been issuedgiven of any intended or potential downgrading, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened Securities by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ either ▇▇▇▇▇'▇ acceptable Investors Service or Standard & Poor's Corporation. In addition to the Agentforegoing, the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesAgent's discretion, to the extent such counsel deems proper and specified in such opinionfurther condition that there shall not have been, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental body▇.▇. ▇▇▇▇▇▇ Securities LLC.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein (in the case of the Prospectus, in the light of the circumstances under which they were made) or necessary to make the statements therein not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles Trust Indenture Act of incorporation or bylaws of 1939, as amended (the Holding Company“Trust Indenture Act”), or arising or outstanding by operation of law or under any contractand, indenture, agreement, instrument or other document known to such counsel, except for assuming that each Indenture is the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the respective Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents (as defined in such opinion), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan Delaware General Corporation Law or any rule or regulation that has been duly adopted issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Board Company or any of Directors its subsidiaries or any of the Holding Company and the Bank and has been approved by the members of the Bank their properties, except that it is understood that no opinion is given in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions this paragraph with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Conversion imposed Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the OTSCompany, the Commissionexecution, or any other governmental agency, if any, were complied with delivery and compliance by the Primary Parties Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) The statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof, which are to be described in Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act and the Prospectus was filed on March 14, 2014, pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Securities Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Securities Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no belief with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Datedeemed incorporated by reference in, or omitted from, the Registration Statement, including the Prospectus or the Exchange Act Documents (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which defined in such counsel need express no opinionletter), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.; and
(xviiiii) There are no legal or governmental proceedings pending, or, nothing has come to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent attention that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by causes such counsel and is accurate in all material respects.
to believe that (xxa) None of the Primary Parties is required Registration Statement (including the Exchange Act Documents incorporated or deemed to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement therein and the Prospectus and related matters were discussed and has considered the matters required deemed to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)a part thereof), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable TimeMarch 14, 2014 contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chief Executive Officer, any Vice Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of his or her knowledge, are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) , on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter Company will furnish each Agent with such conformed copies of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and the Prospectustake any steps as are required to be taken by it pursuant to Sections 4(a), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of (e), (f) and other representatives of the Primary Parties(h) hereof, counsel to the Primary Parties, representatives(ii) not later
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder Company and the occurrence of the Closing and the Conversion are your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or any state authority and no order review, or other action suspending the authorization for use has changed its outlook with respect to, its rating of the Program Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(iii) The Prospectus, each Free Writing Prospectus or the consummation and all other Time of the Conversion Sale Information shall have been issued, or proceedings therefor initiated ortimely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the knowledge of extent required by Rule 433 under the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyAct).
(b) At Subsequent to the Closing Datedate of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received:
(1) The opinionreceived an opinion letter of Simpson Thacher & Bartlett LLP, dated as of counsel for the Closing Date, of ▇Company or such o▇▇▇▇ ▇▇▇▇▇▇▇ acceptable ▇▇ is ▇▇▇▇▇▇▇ble to the such Agent, in form and substance satisfactory to including in-house counsel, dated the Agent and counsel for the Agent Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse EffectProspectus.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Indenture has been duly authorized, executed and validly authorized delivered by all necessary corporate action on the part Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, assuming that the Indenture is the valid and legally binding obligation of the Holding Trustee, constitutes a valid and legally binding obligation of the Company and enforceable against the Bank and, upon payment therefor Company in accordance with its terms, subject to the terms effects of the Planbankruptcy, will be validly issuedinsolvency, fully paid fraudulent conveyance, reorganization, moratorium and nonassessable other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and will be owned an implied covenant of record good faith and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionfair dealing.
(iii) The activities This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Holding Company, enforceable against the Company and in accordance with its terms, subject to the Bankeffects of bankruptcy, as described in the Prospectusinsolvency, are permitted by federal law. To such counsel’s knowledgefraudulent conveyance, each of the Holding Company and the Bank has obtained all licensesreorganization, permits, moratorium and other governmental authorizations that are material for the conduct similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of its business, good faith and all such licenses, permits fair dealing and other governmental authorizations are in full force and effect, and subject to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respectsconsiderations of public policy.
(iv) The Bank is a member Unit Agreements and Warrant Agreements have been duly authorized by the Company and, when duly executed and delivered by the Company will be valid and legally binding obligations of the FHLB Company enforceable against the Company in accordance with their terms, subject to the effects of Atlanta. The Bank is bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an insured depository institution under the provisions implied covenant of the Federal Deposit Insurance Act, as amended, good faith and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatenedfair dealing.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will Notes have been duly authorizedauthorized by the Company and, validly issued when the terms of the Notes and fully paid their issue and nonassessable sale have been duly established in accordance with the Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the provisions of the Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be exempt from registration under entitled to the 1933 Actbenefits of the Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(vi) The Bank does not Warrants have any direct or indirect subsidiaries been duly authorized by the Company and, when the applicable Warrant Agreement has been duly executed and delivered by the Company and the only subsidiary terms of the Holding Warrants and their issue and sale have been duly established in accordance with the applicable Warrant Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly countersigned by the Warrant Agent in accordance with the applicable Warrant Agreement, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the applicable Warrant Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in a proceeding in equity or at the Closing Date is the Banklaw); and an implied covenant of good faith and fair dealing.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will The Units have been duly and validly authorized for issuanceby the Company and, and when issued the applicable Unit Agreement has been duly executed and delivered by the Holding Company pursuant and the terms of the Units and their issue and sale have been duly established in accordance with the Unit Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Units have been duly executed by the Company and duly countersigned by the Unit Agent in accordance with the Unit Agreement, and upon payment and delivery in accordance with this Agreement, the Units will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the Plan against payment benefits of the consideration calculated as set forth Unit Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally; general equitable principles (whether considered in the Plan, will be fully paid and nonassessablea proceeding in equity or at law); and (d) the issuance an implied covenant of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plangood faith and fair dealing.
(viii) The execution issue and sale of the Program Securities and the execution, delivery and performance by the Company of this Agreement, the Indenture, the Warrant Agreements and the Unit Agreement will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that it is understood that no opinion is given in this paragraph (viii) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(ix) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Program Securities and the compliance by the Company with the provisions of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its termsIndenture, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent it is understood that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
no opinion is given in this paragraph (ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bankwith respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act; and the Prospectus was filed on December 1, 2005 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings proceeding for that purpose have or pursuant to Section 8A under the Act has been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivxi) The material tax consequences of the Conversion are set forth statements made in the Prospectus under the captions “Summary – Tax Consequences” "Description of Notes," "General Terms of the Notes," "Description of Debt Securities," "Description of Warrants" and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and "Description of Units," insof▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
in terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects (4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance subject to the effect that during insertion in the preparation Notes, the Warrants and/or the Units of the Registration Statement maturity dates, interest rates and other similar terms thereof which are to be described in Term Sheets and Pricing Supplements to the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives).
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of an --------------------------------- Agent, as agent of the Agent hereunder Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Com- mencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicita- tion Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the Public Utility Commission of Oregon and the Conversion Application Washington Utilities and Holding Company Application shall have been approved by Transportation Commission which are acceptable to the OTSAgents and which permit the issuance and sale of the Securities substantially in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTSby, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iiivi) any violation there shall not have occurred: (A) a suspension or material limitation of any obligation, agreement, covenant trading in securities generally on the New York Stock Exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as New York State authorities; (C) an exhibit to, or incorporated engagement by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and in hostilities or any escalation of hostilities, the State effect of Maryland. In rendering which, in the judgment of such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as long as such other opinion indicates that the Agent may rely principal on the opinion, terms and (B) as to matters of fact, to in the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder manner contemplated by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel this Agreement and, if applicable, local counselany Terms Agreement or other agreement; or (D) any down- grading, whose opinion(s) or any notice shall expressly authorize such reliance. The opinion have been given of such counsel for the Primary Parties may state that it is to be governed any intended or qualified by the Legal Opinion Accord potential downgrading, of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective Securities by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of either Moody's ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPrs Service or Standard & Poor's Corporation. In addition to the foregoing, counsel for the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, with respect to the further condition that there shall not have been, since the date of such matters Terms Agreement or other agreement or since the respective dates as of which information is given in the Agent may reasonably require; such opinion may relyRegistration Statement, as to matters of factany material adverse change in the condition, upon certificates of officers and directors financial or otherwise, or in the earnings, business affairs or business prospects of the Primary Parties delivered pursuant hereto Company and its subsidiaries considered as one enterprise, whether or as such counsel may reasonably request and upon not arising in the opinion ordinary course of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder Company and the occurrence of the Closing and the Conversion are your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany and the Guarantor set forth herein, at to the performance by the Company and as the Guarantor of their respective obligations hereunder and to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the Note Indenture shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany, threatened the Guarantor or such Agent, shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company or the Guarantor by any “nationally recognized statistical rating organization”, as such term is defined by the Commission or any state authority and no order or other action suspending the authorization for use purposes of Section 3(a)(62) of the Prospectus Exchange Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or review, or has changed its outlook with respect to, its rating of the Program Securities or of any other debt securities or preferred stock of or guaranteed by the Company or the consummation Guarantor (other than an announcement with positive implications of the Conversion a possible upgrading).
(iii) The Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been issued, or proceedings therefor initiated ortimely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the knowledge of extent required by Rule 433 under the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyAct).
(b) At Subsequent to the Closing Datedate of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or of the Guarantor or its subsidiaries that is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion letter of the Closing Date, of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& B▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company and the Guarantor or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company Guarantor has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws law of the State of MarylandDelaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the law of the United States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse EffectProspectus.
(ii) The Bank Company has been duly formed and is validly existing and in good standing as a federally chartered mutual savings bank incorporated limited liability company under the laws law of the United States State of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of AmericaDelaware, with full limited liability company power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law Registration Statement and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionProspectus.
(iii) The activities of Note Indenture has been duly authorized, executed and delivered by the Holding Company and the BankGuarantor and duly qualified under the Trust Indenture Act, as described in and, assuming that the Prospectus, are permitted by federal law. To such counsel’s knowledge, each Note Indenture (including the Notes Guarantee set forth therein) is the valid and legally binding obligation of the Holding Note Trustee, the Note Indenture (including the Notes Guarantee set forth therein) constitutes a valid and legally binding obligation of the Company and the Bank has obtained all licensesGuarantor, permits, and other governmental authorizations that are material for enforceable against the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith Guarantor in all material respectsaccordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(iv) The Bank This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor and, assuming that this Agreement is the valid and legal obligation of J.▇. ▇▇▇▇▇▇ Securities LLC and the other Agents parties hereto, this Agreement constitutes a member valid and legally binding obligation of the FHLB Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to the effects of Atlanta. The Bank is bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an insured depository institution under the provisions implied covenant of the Federal Deposit Insurance Act, as amended, good faith and no proceedings for the termination or revocation fair dealing and subject to considerations of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatenedpublic policy.
(v) The Warrant Indenture has been duly authorized capital stock by the Company and the Guarantor and duly qualified under the Trust Indenture Act and, when duly executed and delivered by the Company and the Guarantor, assuming that the Warrant Indenture (including the Warrants Guarantee set forth therein) is the valid and legally binding obligation of the Bank consists Warrant Trustee, the Warrant Indenture (including the Warrants Guarantee set forth therein) will constitute a valid and legally binding obligation of one million (1,000,000) shares of serial preferred stockthe Company and the Guarantor, par value $0.01 per shareenforceable against the Company and the Guarantor in accordance with its terms, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant subject to the Planeffects of bankruptcy, shares insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of such common stock will be owned beneficially good faith and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actfair dealing.
(vi) The Bank does Notes have been duly authorized by the Company and, when the terms of the Notes and their issue and sale have been duly established in accordance with the Note Indenture and this Agreement so as not have to violate the Company’s Certificate of Formation or Limited Liability Company Agreement or any direct applicable law or indirect subsidiaries agreement or instrument then binding on the Company, and the only subsidiary Notes have been duly executed by the Company and duly authenticated by the Note Trustee in accordance with the provisions of the Holding Note Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms and entitled to the benefits of the Note Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at the Closing Date is the Banklaw); and an implied covenant of good faith and fair dealing.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will The Warrants have been duly and validly authorized for issuanceby the Company and, and when issued the Warrant Indenture has been duly executed and delivered by the Holding Company pursuant and the Guarantor and the terms of the Warrants and their issue and sale have been duly established in accordance with the Warrant Indenture and this Agreement so as not to violate the Company’s Certificate of Formation or Limited Liability Company Agreement or any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly authenticated by the Warrant Trustee in accordance with the provisions of the Warrant Indenture, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms and entitled to the Plan against payment benefits of the consideration calculated as set forth Warrant Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in the Plan, will be fully paid and nonassessablea proceeding in equity or at law); and (d) the issuance an implied covenant of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plangood faith and fair dealing.
(viii) The issue and sale of the Program Securities by the Company, the execution, delivery and performance of this Agreement by the Company and the Guarantor and the execution and delivery of this Agreement the Note Indenture and the consummation Warrant Indenture by the Company and the Guarantor will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Formation or Limited Liability Company Agreement of the transactions contemplated hereby have been duly authorized by all necessary corporate action on Company, the part Certificate of Incorporation or By-laws of the Primary Parties; and this Agreement constitutes a validGuarantor, legal and binding obligation of each of any federal or New York State statute, the Primary PartiesDelaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York State statute, enforceable in accordance with its termsthe Delaware Limited Liability Company Act or the Delaware General Corporation Law, or any order known to such counsel issued pursuant to any federal or New York State statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any federal or New York State court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law, except that it is understood that no opinion is given in this paragraph (viii) with respect to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except any federal or state securities law or any rule or regulation issued pursuant to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, any federal or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies)state securities law.
(ix) The Plan has been duly adopted No consent, approval, authorization, order, registration or qualification of or with any federal or New York State governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law or, to our knowledge, any federal or New York State court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the Program Securities by the Board of Directors of the Holding Company and the Bank Guarantor and has been approved the compliance by the members of the Bank in the manner required by the Conversion Regulations Company and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance Guarantor with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, Note Indenture and the consummation of the ConversionWarrant Indenture, except that it is understood that no opinion is given in this paragraph (ix) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiix) The Registration Statement has become effective under the 1933 Act; and the Prospectus was filed on April 15, 2016 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings proceeding for that purpose have has been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivxi) The material tax consequences of the Conversion are set forth statements made in the Prospectus under the captions “Summary – Tax ConsequencesDescription of Debt Securities of JPMorgan Chase Financial Company LLC” and “Federal Description of Warrants of JPMorgan Chase Financial Company LLC,” insofar as they relate to the Program Securities and State Taxation.” The purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of such terms of such documents in all material respects (subject to the insertion in the Notes and/or the Warrants of the maturity dates, interest rates and other similar terms thereof, which are to be described in Term Sheets and Pricing Supplements to the Prospectus, it being understood for the avoidance of doubt that such counsel express no opinion therein with respect to the final terms of the Program Securities, the final pricing or distribution terms of the offering of the Program Securities or information based upon or derived therefrom or any information in any supplement or amendment to the Prospectus).
(xii) To such counsel’s knowledge, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus under or to be filed as exhibits to the captions “Summary – Tax Consequences” Registration Statement or incorporated by reference therein that are not described and “Federal and State Taxation” has been reviewed filed or incorporated by such counsel and fairly describes such opinion rendered by such counsel and reference as required.
(d) Such Agent shall have received a letter of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantor or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Act, and the Prospectus, and the form as of certificate April 18, 2016, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act reports incorporated therein; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that the Registration Statement at (including the time it was declared effective documents incorporated by reference in the Registration Statement on file with the Commission and on the effective date of the Registration Statement), as of the date of such letter or that the General Disclosure Package as of the Applicable TimeApril 18, 2016, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference in the Prospectus), as of April 18, 2016, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to (i) the final terms of the Program Securities, the final pricing or distribution terms of the offering of the Program Securities or information based upon or derived therefrom or any information contained in any supplement or amendment to the Prospectus, or (ii) the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act reports incorporated therein.
(3e) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, (i) with respect to the Company, the President, any Executive Vice President, any Managing Director or any Senior Vice President and (ii) with respect to the Guarantor, the Chief Executive Officer, any Vice-Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer, any Managing Director, any Senior Vice President or any officer of the Guarantor performing similar functions, in which such matters as officer shall state, to the Agent may reasonably require; such opinion may relybest of his or her knowledge after reasonable investigation, that the representations and warranties of the Company or the Guarantor, as applicable, in this Agreement are true and correct, that the Company or the Guarantor, as applicable, has complied with all agreements and satisfied all conditions on its part to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto be performed or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfied hereunder at or prior to the effect date of such certificate, that during no stop order suspending the preparation effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the ProspectusCommission and that, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives subsequent to the date of the Primary Parties, counsel to the Primary Parties, representativesmost recent financ
Appears in 1 contract
Sources: Master Agency Agreement (JPMorgan Chase Financial Co. LLC)
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental body▇.▇. ▇▇▇▇▇▇ Securities LLC.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein (in the case of the Prospectus, in the light of the circumstances under which they were made) or necessary to make the statements therein not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles Trust Indenture Act of incorporation or bylaws of 1939, as amended (the Holding Company“Trust Indenture Act”), or arising or outstanding by operation of law or under any contractand, indenture, agreement, instrument or other document known to such counsel, except for assuming that each Indenture is the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the respective Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents (as defined in such opinion), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan Delaware General Corporation Law or any rule or regulation that has been duly adopted issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Board Company or any of Directors its subsidiaries or any of the Holding Company and the Bank and has been approved by the members of the Bank their properties, except that it is understood that no opinion is given in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions this paragraph with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Conversion imposed Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the OTSCompany, the Commissionexecution, or any other governmental agency, if any, were complied with delivery and compliance by the Primary Parties Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) The statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof, which are to be described in Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act and the Prospectus was filed on , pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Securities Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Securities Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no belief with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Datedeemed incorporated by reference in, or omitted from, the Registration Statement, including the Prospectus or the Exchange Act Documents (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which defined in such counsel need express no opinionletter), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.; and
(xviiiii) There are no legal or governmental proceedings pending, or, nothing has come to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent attention that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by causes such counsel and is accurate in all material respects.
to believe that (xxa) None of the Primary Parties is required Registration Statement (including the Exchange Act Documents incorporated or deemed to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement therein and the Prospectus and related matters were discussed and has considered the matters required deemed to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)a part thereof), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chief Executive Officer, any Vice Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of his or her knowledge, are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) , on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter Company will furnish each Agent with such conformed copies of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and the Prospectustake any steps as are required to be taken by it pursuant to Sections 4(a), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of (e), (f) and other representatives of the Primary Parties(h) hereof, counsel to the Primary Parties(ii) not later than 10:00 a.m., representativesNew York Cit
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of an Agent, as --------------------------------- agent of the Agent hereunder Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the Oregon Public Utility Commission and the Conversion Application Washington Utilities and Holding Company Application shall have been approved by Transportation Commission which are acceptable to the OTSAgents and which permit the issuance and sale of the Securities substantially in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary PartiesCompany contemplated by, threatened the Commission, and (vi) there shall not have occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the New York Stock Exchange or any relevant exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the Commission United States in hostilities or any state authority escalation of hostilities, the effect of which, in the judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and no order in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other action suspending the authorization for use of the Prospectus agreement; or the consummation of the Conversion (D) any downgrading, or any notice shall have been issuedgiven of any intended or potential downgrading, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened Securities by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ either ▇▇▇▇▇'▇ acceptable Investors Service or Standard & Poor's Corporation. In addition to the Agentforegoing, the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesAgent's discretion, to the extent such counsel deems proper and specified in such opinionfurther condition that there shall not have been, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and with respect to the occurrence of the Closing and the Conversion are Offering will be subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective completion by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness Agent of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance a due diligence review satisfactory to the Agent in its sole judgment and counsel for to the satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions, as applicable, which conditions the Company covenants to exercise its reasonable best efforts to have fulfilled on or prior to the effect thatClosing Date:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Canadian Supplemented Prospectus and is duly qualified to transact business and is any Amendment shall have been filed with the Securities Commissions in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.accordance with Applicable Securities Laws;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws Securities (including, for greater certainty, the common shares of the United States of AmericaCompany underlying such securities) and the Broker Warrants (including, and upon consummation for greater certainty, the common shares of the Conversion, Company underlying the Bank will Broker Warrants) shall be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws created and issued, all actions required to be taken by or on behalf of the United States Company, including the passing of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities all requisite resolutions of the Bank as described in the Prospectus are permitted by federal law directors and the rulesfiling of all necessary certificates, regulations instruments and practices of the OTS; and at documents with governmental authorities, shall have occurred prior to the Closing Date, the issuance Time so as to validly create and sale of the capital stock of the Bank issue such securities and so as to the Holding Company in the Conversion has been have duly and validly authorized by all necessary corporate action on and approved this Agreement, the part warrant indenture in respect of the Holding Company Warrants and all matters relating to the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.foregoing;
(iii) The activities of the Holding Company and shall have made and/or obtained the Banknecessary filings, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent consents and acceptances to or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charterfrom, as the case may be, the Securities Commissions required to be made or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement obtained by the Primary PartiesCompany in connection with the Offering, on terms which are acceptable to the incurrence Company and the Agent, acting reasonably, prior to the Closing Date, it being understood that the Agent will do all that is reasonably required to assist the Company to fulfil this condition;
(iv) the Company will deliver a certificate of the obligations set forth herein Company and signed on behalf of the Company, but without personal liability, by the Chief Executive Officer of the Company and the consummation Chief Financial Officer of the transactions contemplated herein will not result in (i) any violation Company or such other senior officers of the provisions of the articles of incorporation or charter, Company as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that acting reasonably, addressed to the Agent may rely on and its counsel and dated the opinionClosing Date, in form and (B) as content satisfactory to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes counsel, acting reasonably, certifying that:
(A) the Offering Documents meet the requirements hereof and of its own opinion on the opinion of such counsel Applicable Securities Laws and have been modified or supplemented as required herein and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date Closing Date, constitute full, true and plain disclosure of such letter or that all material facts relating to the General Disclosure Package as of the Applicable Time, contained or contains Securities and do not contain any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light not misleading;
(B) all necessary corporate approvals have been obtained to enable the Company to issue and deliver: (i) the Securities; and (ii) the Broker Warrants;
(C) no cease trade order or similar order preventing, suspending or materially restricting the Offering, affecting any securities of the circumstances under Company or objecting to the use of the Canadian Shelf Prospectus or the Canadian Prospectus Supplement or any part thereof has been issued and no proceedings for such purpose have been initiated, are pending or, to the knowledge of such officers, threatened;
(D) to the knowledge of such officers, there has been no material adverse change relating to the Company since the date hereof which they were made has not misleading been generally disclosed;
(it being understood that counsel need express E) since the date hereof, no comment or opinion material change relating to the Company, except for the Offering, has occurred with respect to financial statementswhich the requisite material change statement or report has not been filed and no such disclosure has been made;
(F) the representations and warranties of the Company contained in this Agreement (i) qualified by materiality, notes to financial statements, schedules are true and other financial correct and statistical data included, or statistical or appraisal methodology employed(ii) not so qualified are true and correct in all material respects, in each case at the Registration StatementClosing Time, or Prospectus or General Disclosure Package).with the same force and effect as if made by the Company as at the Closing Time;
(3G) The favorable the common shares sold in the Offering, the common shares underlying all Warrants and the common shares underlying the Broker Warrants shall have been conditionally approved for listing on the TSX Venture Exchange;
(H) the Company has complied, and will comply, with all the covenants and has satisfied (or will satisfy) all the terms and conditions of this Agreement on its part to be complied with or satisfied, other than conditions which have been waived by the Agent, at or prior to the Closing Time; and
(I) such other matters in relation to this Offering as the Company and the Agent shall agree prior to the Closing Time;
(v) executed US Subscription Agreement and Accredited Investor Questionnaires, each in the form attached as an exhibit to the US Memorandum, shall have been obtained from each U.S. investor;
(vi) the Agent shall have received at the Closing Time a favourable legal opinion, dated as of in form and substance satisfactory to the Closing DateAgent, of acting reasonably, addressed to the Agent and their its counsel from the Company’s Canadian Counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP;
(vii) the Company shall cause a favourable legal opinion, in form and substance satisfactory to the Agent acting reasonably, to be delivered to the Agent and its counsel for at the Closing Time by the Company’s U.S. counsel that no registration of the Securities is required under the 1933 Act in connection with the offer or sale of the Securities in the United States in the manner contemplated by this Agreement and the US Memorandum to be used in connection with the offer and sale of the Securities in the United States. In providing such opinions, such counsel will be entitled to assume that (i) the representations and warranties of the Company and the Agent set forth in this Agreement are true and correct and (ii) compliance by the Company and the Agent with their respective obligations under this Agreement. Such opinions shall be limited to the federal laws of the United States and shall be subject to such other qualifications and assumptions as are customary and as the Agent and its counsel may agree, acting reasonably;
(viii) the Company will deliver a certificate of the Company, signed by an officer of the Company that is acceptable to the Agent, with respect acting reasonably, addressed to such matters as the Agent may reasonably require; such opinion may relyand its counsel and dated the Closing Date, as in form and content satisfactory to matters of factthe Agent’s counsel, upon certificates of officers acting reasonably, certifying that:
(A) neither the Company nor any predecessor thereto (including, for greater certainty, Synergist Medical Inc.) has assigned, transferred, pledged or otherwise conveyed any right, title or interest, in full or in part, in and directors of to the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon Rayman Patents listed in Schedule B to any other party with the opinion exception of ▇▇▇▇▇ ▇▇▇▇▇▇.▇ or Titan Medical Inc.; and
(4B) The letter of neither the Company nor any predecessor thereto (including, for greater certainty, Synergist Medical Inc.) has assigned, transferred, pledged or otherwise conveyed any right, title or interest, in full or in part, in and to the ▇▇▇▇▇▇▇▇ Patents listed in Schedule B to any other party with the exception of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or Titan Medical Inc.;
(ix) the Agent shall have received at the Closing Time letters dated the Closing Date, in form and substance satisfactory to the effect that during Agent, acting reasonably, addressed to the preparation Agent and the directors of the Registration Statement Company from the auditors of the Company, BDO Canada LLP, confirming the continued accuracy of their long form “comfort letter” referred to in Section 9(i)(C) hereof, with such changes as may be necessary to bring the information in such letters forward to a date not more than two business days prior to the Closing Date, which changes shall be acceptable to the Agent, acting reasonably;
(x) the Company shall have furnished to the Agent and its counsel such other documents and certificates as they may reasonably request for the purpose of enabling it to pass upon the issuance and sale of the Securities (including, for greater certainty, the common shares of the Company underlying the Securities) and the ProspectusBroker Warrants (including, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives for greater certainty, the common shares of the Primary Parties, counsel Company underlying the Broker Warrants) as herein contemplated or in order to evidence the accuracy of any of the representations or warranties or the fulfillment of any of the conditions herein contained or to the Primary Parties, representativesaccuracy and completeness of any statements in the Offering Documents; and
(xi) the form and terms of the Warrant Indenture and the Broker Warrants shall be satisfactory in all respects to the Agent.
Appears in 1 contract
Sources: Agency Agreement
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and to sell the occurrence of the Closing and the Conversion are Shares as provided herein shall be subject to the condition that all accuracy, as of the date hereof and as of each Closing Date, of the representations and warranties of the Primary Parties herein contained areCompany herein, at and as to the performance by the Company of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their its obligations hereunder to be performed on or before such dates and to the following further additional conditions:
(a) The Registration Statement shall have been declared become effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated and no proceeding for that purpose shall have been instituted or, to the knowledge of the Primary PartiesCompany, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyAgent's reasonable satisfaction.
(b) At The Agent shall not have advised the Closing DateCompany that the Registration Statement or 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) 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 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, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, or a downgrading in or withdrawal of the rating assigned to any of the Company's securities by any rating organization, and no rating organization shall have publicly announced that it has under surveillance or review its rating of any of the Company's securities.
(d) The Agent shall have received:
(1received on the date hereof and at every other date specified in Section 4(l) The opinionhereof, opinions of Company Counsel, dated as of the Closing Datesuch dates, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agentrespectively, in form and substance satisfactory to the Agent and counsel for the Agent substantially to the effect that:
(i) The Holding the Company has been duly incorporated and is validly existing as a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with Delaware and has full corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank each Subsidiary that is a federally chartered mutual savings bank corporation incorporated under the laws of the United States of AmericaDelaware, Texas or New York has been duly incorporated and upon consummation of the Conversion, the Bank will be a is validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing corporation in good standing under the laws of the United States jurisdiction of America, with its incorporation and has full corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuanceauthorized, and and, when issued and delivered to and paid for by the Holding Company purchasers thereof pursuant to the Plan against payment of the consideration calculated as set forth in the Planthis Agreement, will be fully paid and nonassessable; nonassessable and (d) conform in all material respects to the issuance description thereof in the Prospectus and the stockholders of the Shares is not subject to Company have no preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by Shares pursuant to the OTSGeneral Corporation Law of the State of Delaware, the CommissionCompany's certificate of incorporation or to such counsel's knowledge, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.agreement;
(xiiv) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 ActSecurities Act and has registered under the Securities Act the offer and sale of the Shares in the manner contemplated by this Agreement and, and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to such counsel’s knowledge, or threatened by the Commission.;
(xivv) The the Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, (other than financial statements and related schedules or other information of a financial or reserve engineering nature therein, as to which such counsel need express no opinion) complied as to form in all material tax consequences respects with the requirements of the Conversion are set forth Securities Act and the Rules and Regulations; and the documents (other than exhibits and other than financial statements and related schedules or other information of a financial or reserve engineering nature therein, as to which such counsel need express no opinion) incorporated by reference in the Prospectus or any amendment or supplement thereto, when filed with the Commission under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented)Exchange Act, complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable lawsSecurities Act or the Exchange Act, rules and regulations and decisions and orders of the OTSas applicable, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation Rules and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.Regulations;
(xviivi) At the time that description in the Prospectus of statutes, legal and governmental proceedings and contracts are accurate in all material respects; and such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement became effective and or required to be described in or incorporated by reference into the Prospectus that are not filed, described or incorporated by reference as required;
(vii) the statements set forth in the Prospectus under the caption "Description of Capital Stock," insofar as they purport to constitute a summary of the Closing Dateterms of the Shares, and under the Registration Statementcaption "Plan of Distribution," insofar as they purport to describe the provisions of the laws and documents referred to therein, including are accurate in all material respects;
(viii) this Agreement has been duly authorized, executed and delivered by the Prospectus Company;
(as amended ix) the execution, delivery and performance of this Agreement by the Company do not and will not result in a breach or supplemented) (other than violation of any of the financial statementsterms and provisions of, notes or constitute a default under, any agreement or instrument known to financial statementssuch counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject, nor will such action result in the violation of the Company's charter or by-laws, or any statute, order, rule or regulation known to such counsel of any court, governmental agency or body having jurisdiction over the Company, any of its subsidiaries or any of their properties except for such breaches, defaults violations or conflicts that would not in the aggregate have a material adverse effect on the Company's ability to perform its obligations under this Agreement or on the condition, financial tables or other financial otherwise, or the earnings, business affairs or business prospects of the Company and statistical data included therein and the appraisal valuation and the business plan its subsidiaries considered as to which one enterprise (except that such counsel need express no opinionopinion with respect to federal or state securities or Blue Sky laws); and no consent, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal approval, authorization or order of, or filing with, any court or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement agency or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties regulatory body is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and for the consummation of the transactions contemplated herein will not result by this Agreement in (i) any violation connection with the issuance or sale of the provisions Shares by the Company, except such as have been obtained under the Securities Act and such as may be required under state securities or blue sky laws in connection with the sale and distribution of the articles Shares by the Agent; and
(x) to such counsel's knowledge and other than as set forth in the Prospectus, there are no actions, suits or proceedings pending to which the Company or any of incorporation its subsidiaries is a party or charterof which any property of the Company or any of its subsidiaries is the subject that, as if determined adversely to the case may beCompany or any of its subsidiaries, would individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, or the bylaws results of any operations, stockholders' equity or business of the Primary PartiesCompany and its subsidiaries considered as one enterprise; and, (ii) any violation of any applicable lawto such counsel's knowledge, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Marylandno such proceedings are threatened. In rendering such opinionaddition, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it such counsel has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of either the Registration Statement and the ProspectusStatement, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time(including each Post-Effective Amendment thereto) became effective, contained or contains any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus and any amendments or supplements thereto, on the date of such opinion and at each Filing Date on or prior to the date of the opinion, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made made, not misleading (misleading; it being understood that such counsel need express no comment opinion as to the financial statements and related schedules or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information of a reserve engineering nature included in any of the Registration Statement, or Prospectus or General Disclosure Package)documents mentioned in this paragraph.
(3e) 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 accountant for the Company, or another independent accountant satisfactory to the Agent, dated the date of delivery thereof, substantially in the form attached hereto as Annex I and otherwise in form and substance satisfactory to Agent.
(f) On the date hereof and at such other dates specified in Section 4(n) hereof, the Agent shall have received a certificate of the chief petroleum engineer of the Company, dated as of each such date, to the effect that, after reasonable investigation, nothing has come to his attention since the date of the preparation of the estimates of the Company's proved reserves included or incorporated by reference in the Prospectus that would cause him to believe that such estimates in the aggregate were materially incorrect as of such date.
(g) The favorable opinionAgent shall have received from the Company a certificate, or certificates, signed by the President or a Vice President and by the principal financial or accounting officer of the Company, dated as of the Closing date hereof and on such other dates specified in Section 4(k), to the effect that, to their knowledge based upon reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the date hereof or the Filing Date, 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 date hereof and each such Filing Date (as the case may be) pursuant to this Agreement;
(ii) no stop order suspending the effectiveness of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPthe Registration Statement has been issued, counsel and no proceeding for that purpose has been instituted or, to the Agentknowledge of such officer after due inquiry, is threatened, by the Commission;
(iii) since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(A) neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with respect the business of the Company and its subsidiaries, taken as a whole, from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus that has had or could reasonably be expected to have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (B) since the respective dates as of which information is given in the Prospectus, there has not been any material adverse change, on a consolidated basis, in the business, financial condition or results of operations of the Company and its subsidiaries considered as one enterprise that has not been described in an amendment or supplement to the Registration Statement or the Prospectus.
(h) The Shares shall have been approved for listing, subject to notice of issuance,on the NYSE.
(i) On the date hereof and on each Filing Date, the Company shall have furnished to the Agent such matters appropriate further information, certificates and documents as the Agent may reasonably require; request. All such opinion may relyopinions, as to matters of factcertificates, upon certificates of officers letters and directors of other documents will be in compliance with the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP provisions hereof only if they are satisfactory in form and substance to the effect that during Agent. The Company will furnish to the preparation Agent such conformed copies of the Registration Statement and the Prospectussuch opinions, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of certificates, letters and other representatives of documents as the Primary Parties, counsel to the Primary Parties, representativesAgent may reasonably request.
Appears in 1 contract
Sources: Sales Agency Agreement (Newfield Exploration Co /De/)
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been issued under the 1933 Act or and no proceedings therefor initiated for that purpose shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Lead Agent.
(ii) (A) No downgrading shall have occurred nor any notice given of any intended downgrading in the rating accorded the Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission or any state authority and no order or other action suspending for purposes of Rule 436(g)(2) under the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental bodySecurities Act.
(b) At Subsequent to the Closing Datedate of this Agreement and each Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is, in the judgment of the Lead Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, in form and substance satisfactory to including in-house counsel, dated the Agent and counsel for the Agent Closing Date, to the effect that:
(i) The Holding the Company has been duly incorporated and is validly existing as a corporation duly organized and validly existing and in good standing under the laws of the State of MarylandDelaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus JPMorgan Chase Bank has been duly incorporated and is duly qualified to transact business and is validly existing as a banking corporation in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States State of AmericaNew York, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion ;
(ii) each Indenture has been duly and validly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iii) the Securities have been duly authorized by all necessary corporate action on the part Company and, when the terms of the Holding Company Securities and the Bank and, upon payment therefor of their issue and sale have been duly established in accordance with the relevant Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the relevant Indenture except as the same may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing;
(iv) the issue and sale of the Securities and the compliance by the Company with all the provisions of the Securities, the Indentures and this Agreement, will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any Federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(v) no consent, approval, authorization, order, registration or qualification of or with any Federal or New York state court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) the statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they purport to constitute summaries of the Securities and the Indenture, constitute accurate summaries of the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company Securities and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith Indenture in all material respects.;
(ivvii) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution Registration Statement has become effective under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or; and, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, or threatened by the Commission; and
(viii) to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences there are no contracts or documents of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ a character required to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained be described in the Registration Statement and the Prospectus, and the form of certificate or Prospectus or to be used filed as exhibits to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, therein which violation would have a Material Adverse Effect. In addition, the execution are not described and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, file or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991)required.
(2ix) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, although such counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained made or included in the Registration Statement or the Prospectus except those statements describing the Securities and Prospectusthe Indentures, on the basis such counsel, based upon its due diligence review of the foregoingaffairs of the Company, nothing as described in such opinion, has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ no reason to believe that either the Registration Statement at or the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or Prospectus contains any an untrue statement of a material fact or omitted omits to state any a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood except that counsel no opinion need express no comment or opinion with respect be expressed as to (a) financial statements, notes to financial statements, schedules statements and other financial and statistical data includeddata, or statistical or appraisal methodology employed, (b) statements made in the Registration StatementProspectus concerning taxation, or Prospectus or General Disclosure Packageprovided that such statements are covered by the opinion of counsel for the Agents delivered pursuant to Section 6(f) hereto and (c) statements made in the Form T-1 Statement of Eligibility and Qualification of the Trustees); and
(x) this Agreement has been duly authorized, executed and delivered by the Company.
(3d) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(e) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(f) Such Agent shall have received from Cravath, Swaine & M▇▇▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 6 shall be delivered at the office of the Company at 270 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.
ot later than 10:00 a.m., New York City time, on the date of this Agreement or at such time as may be mutually agreed by the Company and the Lead Agent, which in no event shall be later than the time at which the Agents commence solicitation of purchasers of Securities hereunder, the time and date of such delivery being herein called the “Closing Date”. The Company will furnish each Agent with such conformed copies of such opinions, certificates, letters and other documents as it may reasonably request. In the event that, after the Closing Date, the Company shall determine (4x) The letter to increase pursuant to and in accordance with the terms and provisions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP the Indentures, the aggregate principal amount of the Securities that may be authenticated and delivered under the Indentures and/or (y) to register a portion of the Securities under a registration statement or registration statements in form and substance addition to the effect that during the preparation of the Registration Statement referred to in Section 2(a) above, the Company shall (i) promptly comply with its obligations and take any steps as are required to be taken by it pursuant to Sections 5(a), (e), (f) and (h) hereof, (ii) not later than 10:00 a.m., New York City time, on the date on which any such supplements or amendments to the Prospectus or the Registration Statements, or any additional registration statements, shall be filed by the Company with the Commission under the Act and shall have been declared or deemed effective, or at such later time and date as shall be mutually agreed by the Company and the Lead Agent, deliver or cause to be delivered to each Agent and its counsel the opinions, certificates, letters and other documents required to be delivered pursuant to paragraphs (c), (d), (e) and (f) of this Section 6, and (iii) if applicable, deliver to each Agent a certificate, dated the date each of the other certificates delivered pursuant to clause (ii) above are being delivered, and executed by the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any other Executive Officer of the Company, reaffirming each of the representations and warranties of the Company set forth in Section 2 with respect to any registration statement and any prospectus included in such registration statement filed after the date hereof relating to the Securities. For purposes of the documents required to be delivered pursuant to the preceding paragraph, the term “Registration Statement” shall be deemed to refer to the Registration Statement referred to in Section 2(a), together with any such additional registration statement or registration statements relating to the Securities, in each case as amended or supplemented; the term “Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers ” shall refer to the Prospectus as so amended or supplemented; and the term “Closing Date” shall be deemed to refer to the date on which the requirements under the preceding paragraph are satisfied. As of and other representatives after the requirements of the Primary Partiespreceding paragraph are satisfied, counsel the foregoing terms shall be deemed to be so amended for all purposes of this Agreement. In the case of Additional Agents, the conditions set forth in paragraphs (c), (d), (e) and (f) of this Section 6 shall be deemed satisfied by the delivery of copies of the documents delivered to the Primary Parties, representativesAdditional Agents pursuant to such paragraphs on the Closing Date.
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or and no proceedings therefor initiated for that purpose shall have been instituted or, to the knowledge of the Primary Parties, threatened by the Commission Company or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the such Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will shall be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xivb) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in Neither the Registration Statement and nor the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in light or affecting particularly the business or properties of the circumstances under which they were made not misleading (it being understood that counsel need express no comment Company or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employedits subsidiaries that, in the Registration Statementjudgment of such Agent, or Prospectus or General Disclosure Package)materially impairs the investment quality of the Securities.
(3d) The favorable opinion, dated as Such Agent shall have received an opinion of the Closing Date, of ▇▇▇▇▇▇▇Simp▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of & Bart▇▇▇▇▇ , ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance unsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that during that:
(i) the preparation Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Registration Statement State of Delaware with full corporate power and authority under such laws to own its properties and carry on the business in which it is engaged; The Chase Manhattan Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York with full corporate power and authority under such laws to own its properties and carry on the business in which it is now engaged;
(ii) each Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming the due and valid authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally; and each Indenture has been duly qualified under the Trust Indenture Act and conforms to the description thereof in the Prospectus;
(iii) the Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the relevant Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated in accordance with the provisions of the relevant Indenture and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the relevant Indenture;
(iv) the issue and sale of the Securities and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences compliance by the Company with certain officers of and other representatives all the provisions of the Primary PartiesSecurities, counsel the Indenture and this Agreement, will not conflict with or result in a breach of any of the terms or provisions of, or 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 pursuant to the Primary Partiesterms of, representativesany material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to us and to which the Company is a party or by which the Company may be bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or the By-Laws of the Company or any statute or any rule or regulation applicable to the Company of any Federal, State or other regulatory authority or other governmental body having jurisdiction over the Company or, to the best of our knowledge, any order of any court or of any Federal, State or other regulatory authority or other governmental body having jurisdiction over the Company, and no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body is required
Appears in 1 contract
Sources: Master Agency Agreement (Chase Manhattan Corp /De/)
Conditions to Agent’s Obligations. The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder Company and the occurrence of the Closing and the Conversion are your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany and the Guarantor set forth herein, at to the performance by the Company and as the Guarantor of their respective obligations hereunder and to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the Note Indenture shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany, threatened the Guarantor or such Agent, shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company or the Guarantor by any “nationally recognized statistical rating organization”, as such term is defined by the Commission or any state authority and no order or other action suspending the authorization for use purposes of Section 3(a)(62) of the Prospectus Exchange Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or review, or has changed its outlook with respect to, its rating of the Program Securities or of any other debt securities or preferred stock of or guaranteed by the Company or the consummation Guarantor (other than an announcement with positive implications of the Conversion a possible upgrading).
(iii) The Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been issued, or proceedings therefor initiated ortimely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the knowledge of extent required by Rule 433 under the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyAct).
(b) At Subsequent to the Closing Datedate of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or of the Guarantor or its subsidiaries that is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion letter of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company and the Guarantor or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company Guarantor has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws law of the State of MarylandDelaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the law of the United States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse EffectProspectus.
(ii) The Bank Company has been duly formed and is validly existing and in good standing as a federally chartered mutual savings bank incorporated limited liability company under the laws law of the United States State of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of AmericaDelaware, with full limited liability company power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law Registration Statement and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionProspectus.
(iii) The activities of Note Indenture has been duly authorized, executed and delivered by the Holding Company and the BankGuarantor and duly qualified under the Trust Indenture Act, as described in and, assuming that the Prospectus, are permitted by federal law. To such counsel’s knowledge, each Note Indenture (including the Notes Guarantee set forth therein) is the valid and legally binding obligation of the Holding Note Trustee, the Note Indenture (including the Notes Guarantee set forth therein) constitutes a valid and legally binding obligation of the Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for Guarantor enforceable against the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith Guarantor in all material respectsaccordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(iv) The Bank This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor and, assuming that this Agreement is the valid and legal obligation of ▇.▇. ▇▇▇▇▇▇ Securities LLC and the other Agents parties hereto, this Agreement constitutes a member valid and legally binding obligation of the FHLB Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, subject to the effects of Atlanta. The Bank is bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an insured depository institution under the provisions implied covenant of the Federal Deposit Insurance Act, as amended, good faith and no proceedings for the termination or revocation fair dealing and subject to considerations of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatenedpublic policy.
(v) The Warrant Indenture has been duly authorized capital stock by the Company and the Guarantor and duly qualified under the Trust Indenture Act and, when duly executed and delivered by the Company and the Guarantor, assuming that the Warrant Indenture (including the Warrants Guarantee set forth therein) is the valid and legally binding obligation of the Bank consists Warrant Trustee, the Warrant Indenture (including the Warrants Guarantee set forth therein) will constitute a valid and legally binding obligation of one million (1,000,000) shares of serial preferred stockthe Company and the Guarantor, par value $0.01 per shareenforceable against the Company and the Guarantor in accordance with its terms, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant subject to the Planeffects of bankruptcy, shares insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of such common stock will be owned beneficially good faith and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actfair dealing.
(vi) The Bank does Notes have been duly authorized by the Company and, when the terms of the Notes and their issue and sale have been duly established in accordance with the Note Indenture and this Agreement so as not have to violate the Company’s Certificate of Formation or Limited Liability Company Agreement or any direct applicable law or indirect subsidiaries agreement or instrument then binding on the Company, and the only subsidiary Notes have been duly executed by the Company and duly authenticated by the Note Trustee in accordance with the provisions of the Holding Note Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the benefits of the Note Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at the Closing Date is the Banklaw); and an implied covenant of good faith and fair dealing.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will The Warrants have been duly and validly authorized for issuanceby the Company and, and when issued the Warrant Indenture has been duly executed and delivered by the Holding Company pursuant and the Guarantor and the terms of the Warrants and their issue and sale have been duly established in accordance with the Warrant Indenture and this Agreement so as not to violate the Company’s Certificate of Formation or Limited Liability Company Agreement or any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly authenticated by the Warrant Trustee in accordance with the provisions of the Warrant Indenture, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the Plan against payment benefits of the consideration calculated as set forth Warrant Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in the Plan, will be fully paid and nonassessablea proceeding in equity or at law); and (d) the issuance an implied covenant of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plangood faith and fair dealing.
(viii) The issue and sale of the Program Securities by the Company, the execution, delivery and performance of this Agreement by the Company and the Guarantor and the execution and delivery of this Agreement the Note Indenture and the consummation Warrant Indenture by the Company and the Guarantor will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Formation or Limited Liability Company Agreement of the transactions contemplated hereby have been duly authorized by all necessary corporate action on Company, the part Certificate of Incorporation or By-laws of the Primary Parties; and this Agreement constitutes a validGuarantor, legal and binding obligation of each of any federal or New York State statute, the Primary PartiesDelaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York State statute, enforceable in accordance with its termsthe Delaware Limited Liability Company Act or the Delaware General Corporation Law, or any order known to such counsel issued pursuant to any federal or New York State statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any federal or New York State court or governmental agency or body or any Delaware court or governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law, except that it is understood that no opinion is given in this paragraph (viii) with respect to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except any federal or state securities law or any rule or regulation issued pursuant to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, any federal or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies)state securities law.
(ix) The Plan has been duly adopted No consent, approval, authorization, order, registration or qualification of or with any federal or New York State governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law or, to our knowledge, any federal or New York State court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the Program Securities by the Board of Directors of the Holding Company and the Bank and has been approved compliance by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance Company with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, Note Indenture and the consummation of the ConversionWarrant Indenture, except that it is understood that no opinion is given in this paragraph (ix) with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiix) The Registration Statement has become effective under the 1933 Act; and the Prospectus was filed on [ ] pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and, and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings proceeding for that purpose have has been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivxi) The material tax consequences of the Conversion are set forth statements made in the Prospectus under the captions “Summary – Tax ConsequencesDescription of Debt Securities of JPMorgan Chase Financial Company LLC” and “Federal Description of Warrants of JPMorgan Chase Financial Company LLC,” insofar as they relate to the Program Securities and State Taxation.” The purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of such terms of such documents in all material respects (subject to the insertion in the Notes and/or the Warrants of the maturity dates, interest rates and other similar terms thereof, which are to be described in Term Sheets and Pricing Supplements to the Prospectus, it being understood for the avoidance of doubt that such counsel express no opinion therein with respect to the final terms of the Program Securities, the final pricing or distribution terms of the offering of the Program Securities or information based upon or derived therefrom or any information in any supplement or amendment to the Prospectus).
(xii) To such counsel’s knowledge, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus under or to be filed as exhibits to the captions “Summary – Tax Consequences” Registration Statement or incorporated by reference therein that are not described and “Federal and State Taxation” has been reviewed filed or incorporated by such counsel and fairly describes such opinion rendered by such counsel and reference as required.
(d) Such Agent shall have received a letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantor or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Act, and the Prospectus, and the form as of certificate [ ], appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act reports incorporated therein; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that the Registration Statement at (including the time it was declared effective documents incorporated by reference in the Registration Statement on file with the Commission and on the effective date of the Registration Statement), as of the date of such letter or that the General Disclosure Package as of the Applicable Time[ ], contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference in the Prospectus), as of [ ], contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to (i) the final terms of the Program Securities, the final pricing or distribution terms of the offering of the Program Securities or information based upon or derived therefrom or any information contained in any supplement or amendment to the Prospectus, or (ii) the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act reports incorporated therein.
(3e) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, (i) with respect to the Company, the President, any Executive Vice President, any Managing Director or any Senior Vice President and (ii) with respect to the Guarantor, the Chief Executive Officer, any Vice-Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer, any Managing Director, any Senior Vice President or any officer of the Guarantor performing similar functions, in which such matters as officer shall state, to the Agent may reasonably require; such opinion may relybest of his or her knowledge after reasonable investigation, that the representations and warranties of the Company or the Guarantor, as applicable, in this Agreement are true and correct, that the Company or the Guarantor, as applicable, has complied with all agreements and satisfied all conditions on its part to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto be performed or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfied hereunder at or prior to the effect date of such certificate, that during no stop order suspending the preparation effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated there has been no material adverse change in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Master Agency Agreement (JPMorgan Chase Financial Co. LLC)
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application shall have been approved by the OCC and the Holding Company Application shall have been approved by the OTSFederal Reserve Board, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTSOCC, the Federal Reserve Board, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇, P.C., in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse EffectExhibit C hereto. The opinion may be limited to matters governed by the laws of the United States States, the State of New York and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall be subject to the Legal Opinion Accord of the American Bar Association Section of Business Law (the “Accord”), and the term “knowledge” in such opinion shall have the same meaning as “Actual Knowledge,” as defined in the Accord. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇ ▇▇▇▇”), counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇ ▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), ▇▇▇▇▇ ▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or the Prospectus or the General Disclosure Package).
(35) The favorable opinion, dated as of the Closing Date, of A Blue Sky Memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the offering, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(4c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from ▇▇▇▇▇▇▇▇▇▇ ▇▇, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in Rowle’s opinion the financial statements of the Bank included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and substance the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of any unaudited interim financial statements of the Bank prepared by the Primary Parties as of and for any interim periods ended subsequent to March 31, 2012, a reading of the minutes of the meetings of the Board of Directors and Audit Committee of the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) any such unaudited financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, borrowings (defined as advances from the FHLB of Atlanta, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowance, equity or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses or increase in the provision for loan losses or interest expense of the Bank for the period commencing immediately after the Recent Developments period and ending not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding). On or prior to the date on which any Issuer-Represented Free Writing Prospectus is first used, upon the request of the Agent, the Agent shall receive a letter from ▇▇▇▇▇▇ similar to the letter, or letters, referenced above in this Section 10(c) addressing the financial and statistical information contained in such Issuer-Represented Free Writing Prospectus.
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, to the effect that: (i) they have examined the Registration Statement and at the time the Registration Statement became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date including the conditions contained in this Section 10; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, the Conversion, the acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OCC, the Federal Reserve Board, the Commission or any other federal or state authority; and (vii) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan or to enjoin the Conversion.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date, (i) confirming that during said firm is independent of the preparation Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated and since the respective dates as of which information is given in conferences with certain officers the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of and other representatives operations of any of the Primary Parties, counsel otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition or in the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, from and 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 transaction entered into by the Primary Parties, representativesindependently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) neither of the Primary Parties shall have received from the OCC, the FDIC, or the Federal Reserve Board any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Issuer contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, (or is updated as permitted by Section 4.7 or 9.3, unless the Primary Parties Agent has notified the Issuer that it wishes to suspend the sale of Placement Shares or terminate this Agreement in response to any such update);
(e) the Issuer shall have performed complied in all of their obligations hereunder material respects with all agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 8.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinion, dated as the Issuer shall have duly notified the CSE of the Closing Date, issuance of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable the Placement Shares and the CSE shall not have objected thereto or denied the listing thereof;
(h) the Issuer shall have delivered or caused to the Agent, in form and substance satisfactory be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the Bank to representations or warranties contained herein; (ii) the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part fulfillment of any of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim conditions contained herein; or restriction.
(iii) The activities the accuracy and completeness of the Holding Company and the Bank, as described any information contained in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of ;
(i) the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are ATM Decision shall remain in full force and effect, and without amendment adverse to such counsel’s knowledge the Holding Company and Issuer or the Bank are complying therewith in all material respects.Agent; and
(ivj) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does there shall not have occurred any direct event, matter or indirect subsidiaries and circumstance that would permit the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior Agent to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of terminate this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent --------------------------------- hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application prospectus contained in the MHC-2 shall have been approved by the OTSOTS for mailing prior to the commencement of the Offering, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the OTS, the Commission Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP acceptable to the Agent, Agent in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of MarylandAgent, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.EXHIBIT B.
(viii2) The execution and delivery letter of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants accounting firm for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(19(b)(1)), ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP that caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable TimeClosing Date, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Aguggia LLP.
(4c) The Concurrently with the execution of this Agreement, Agent shall receive a letter of from (i) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ LLP in form & Cha, P.C., dated the date hereof and substance addressed to the effect Agent, such letter confirming that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Cha, P.C. is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Primary Parties is required by the MHC-2 or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ LLP participated & Cha, P.C. opinion the financial statements of the Holding Company included in conferences the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the Commission thereunder and the Conversion Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain officers agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of and other representatives a reading of the minutes of the meetings of the Board of Directors of the Primary Parties, the Audit Committee of the Holding Company, a review of the unaudited interim financial information as of and for the interim period ending December 31, 2006 and the latest available unaudited quarterly financial statements of the Holding Company prepared by the Holding Company which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled "Recent Developments" are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Holding Company or decrease in assets, deposits, loan losses allowances or retained earnings of the Holding Company or there was any decrease in net income, non-interest income, tax expense or net interest income of the Holding Company or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Primary Parties; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Holding Company, which are subject to the internal controls of the accounting system of the Holding Company and other data prepared by the Primary Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, Agent shall receive a letter from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & Cha, P.C. dated the Closing Date, addressed to Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 9, the "specified date" referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(e) At the Closing Date, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, representativesdated the Closing Date, without personal liability to the effect that: (i) they have examined the Prospectus and at the time the Prospectus became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the earnings, capital, properties, business prospects or business affairs of the Primary Parties, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date; (iv) each of the Primary Parties has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date including the conditions contained in this Section 9; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, or the effectiveness of the Registration Statement has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OTS, the Commission, or any other federal or state authority; (vii) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan or to enjoin the Offering.
(g) At the Closing Date, Agent shall receive a letter from the Appraiser, dated as of the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) None of the Primary Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders' equity or results of operations of any of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in Agent's reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of Agent there shall have been no material adverse change in the financial condition or in the earnings, capital, properties of the Primary Parties considered as one enterprise, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Primary Parties, independently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary Parties shall have received from the OTS or the FDIC any direction (oral or written, other than directions applicable to all federally chartered savings banks) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to Agent) and which would reasonably be expected to have a material and adverse effect on the condition (financial or otherwise) or on the earnings, capital or properties of the Primary Parties considered as one enterprise; (iv) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) 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 knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a material and adverse effect on the financial condition or on the earnings, capital, properties or business affairs of the Primary Parties, considered as one enterprise; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or "blue sky" laws of the jurisdictions requested by Agent.
(j) At or prior to the Closing Date, Agent shall receive (i) a copy of the letter from the OTS authorizing the use of the Prospectus and approving the MHC-2, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) copies of certificates of existence for each of the Primary Parties, (iv) a certificate from the FDIC evidencing the Bank's insurance of accounts, (v) a certificate of the FHLB of New York evidencing the Bank's membership therein, and (vi) any other documents that Agent shall reasonably request.
(k) Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the NASD or by order of the Commission or any other governmental authority other than temporary trading halts (A) imposed as a result of intraday changes in the Dow ▇▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a m
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental body▇.▇. ▇▇▇▇▇▇ Securities LLC.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein (in the case of the Prospectus, in the light of the circumstances under which they were made) or necessary to make the statements therein not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles of incorporation or bylaws of Trust Indenture Act, and, assuming that each Indenture is the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the respective Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with the applicable provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents (as defined in such opinion), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York State statute or the rights Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York State statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York State statute or the Delaware General Corporation Law by any federal or New York State court or governmental agency or body having jurisdiction over the Company or any of creditors its subsidiaries or any of savings institutions insured by the FDIC (including laws and judicial decisions relating their properties or any Delaware State court or governmental agency or body acting pursuant to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank Delaware General Corporation Law, except that it is understood that no opinion is given in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions this paragraph with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York State governmental agency or body or any Delaware State governmental agency or body acting pursuant to the Conversion imposed Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York State court or any Delaware State court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the OTSCompany, the Commissionexecution, or any other governmental agency, if any, were complied with delivery and compliance by the Primary Parties Company with the applicable provisions of this Agreement and the execution and delivery by the Company of the Indentures, except such as have been obtained under the Act and the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) The statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they relate to the Securities and purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof, which are to be described in Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act and the Prospectus was filed on [DATE], pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing each case such counsel (i) assumes that the terms of the Securities and any other than information relevant to the offering thereof will be included in the applicable prospectus supplement delivered to investors in such Securities and (ii) expresses no view with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Datedeemed incorporated by reference in, or omitted from, the Registration Statement, including the Prospectus or the Exchange Act Documents (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which defined in such counsel need express no opinionletter), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.; and
(xviiiii) There are no legal or governmental proceedings pending, or, nothing has come to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent attention that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by causes such counsel and is accurate in all material respects.
to believe that (xxa) None of the Primary Parties is required Registration Statement (including the Exchange Act Documents incorporated or deemed to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement therein and the Prospectus and related matters were discussed and has considered the matters required deemed to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)a part thereof), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, [DATE] contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading misleading, except that in each case such counsel (it being understood i) assumes that counsel need express the terms of the Securities and any other information relevant to the offering thereof will be included in the applicable prospectus supplement delivered to investors in such Securities and (ii) expresses no comment or opinion belief with respect to the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chief Executive Officer, any Vice Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of his or her knowledge, are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus, or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) , on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences Company will furnish each Agent with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativessuch conform
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of --------------------------------- an Agent, as agent of the Agent hereunder Company, at any time (each a "Solicitation Time") to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to any Terms Agreement or otherwise, in each case, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, at and in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as of the commencement of the Offering and at and as of the Closing Dateprincipal, in or incorporated in such agreement by reference) were true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
correct (aA) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Commencement Date; (bB) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including or the Prospectus shall be amended or supplemented (other than by a Pricing Supplement), (C) each time a document incorporated by reference in the Prospectus as amended or supplemented) (other than supplemented shall be filed by the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus Company under the captions “Summary,” “Supervision Act or Exchange Act, and Regulation,” “Taxation,” “Restrictions (D) on Acquisition such Solicitation Time or Time of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charterDelivery, as the case may be, or its bylaws or, (ii) prior to such counsel’s knowledge, any obligation, agreement, covenant Solicitation Time or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery Time of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charterDelivery, as the case may be, or the bylaws Company shall have performed all of any its obligations hereunder theretofore to be performed, (iii) all requests for additional information on the part of the Primary Parties, (ii) any violation Commission shall have been complied with to the reasonable satisfaction of any applicable law, act, regulation, order or court order, writ, injunction or decreesuch Agent, and (iiiiv) there shall not have occurred: (A) any violation general suspension of trading in securities on the New York Stock Exchange or the establishment by the New York Stock Exchange or by the Commission or by any Federal or State agency or by the decision of any obligationcourt, agreementany limitation on prices for such trading or any restrictions on the distribution of securities, covenant all to such a degree as, in such Agent's judgment, would restrict materially a free market for the Securities; (B) a general moratorium on commercial banking activities in New York declared by either Federal or condition contained in any contract, indenture, mortgage, loan agreement, note, lease New York State authorities; (C) an outbreak or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws escalation of hostilities involving the United States and or the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than declaration by the United StatesStates of a national emergency or war, to if the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies effect of any such opinion(s) event, in the judgment of such Agent, makes it impracticable or certificates of public officials are delivered inadvisable to Agent together proceed with the opinion solicitation of offers to be rendered hereunder by special counsel to purchase Securities or the Primary Parties. The opinion purchase of such counsel for Securities from the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion Company as principal on the opinion of such counsel terms and in the manner contemplated by this Agreement and, if applicable, local counselany Terms Agreement or other such agreement; (D) a substantial loss, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for on the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord part of the ABA Section Company or any Subsidiary, by fire, explosion, flood, accident or other calamity which renders it inadvisable to consummate the sale of Business Law the Securities (1991regardless of whether or not such loss shall have been insured).
; or (2E) The letter of ▇▇▇▇▇ either (i) a downgrading shall have occurred in the rating accorded the Company's long-term debt by ▇▇▇▇▇'▇ in form and substance to the effect Investors Service, Inc. or Standard & Poor's Corporation or (ii) either of such organizations shall have publicly announced that during the preparation it has under surveillance or review with a possibility of downgrading its rating of any of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)Company's long-term debt.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of an Agent, as agent of the Agent hereunder Company, at any time (each a “Solicitation Time”), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent’s discretion, to the conditions that:
(a) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (i) on the Commencement Date; (ii) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (iii) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (iv) at and as of the commencement of the Offering and each Applicable Time, (v) at and as of the Closing each Settlement Date, true and correct(vi) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be,
(b) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed on or before such dates and to the following further conditions:performed,
(ac) The Registration Statement all requests for additional information on the part of the Commission shall have been declared effective by complied with to the Commission reasonable satisfaction of such Agent,
(d) there shall be in full force and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop effect an order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in OPUC which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, permits the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor Securities in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.,
(xiie) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has and no notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration form shall have been issued or and in effect and no proceedings for that purpose those purposes shall be pending before, or to the knowledge of the Company contemplated by, the Commission,
(f) there shall not have occurred: (i) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (iv) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been instituted orgiven of any intended or potential downgrading, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed Securities by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ either ▇▇▇▇▇▇’▇ ▇▇▇▇▇▇ to Investors Service or Standard & Poor’s Rating Services, and
(g) the Primary Parties Company shall have filed a statement with the WUTC establishing compliance with the applicable Washington statutory provisions with respect to the issuance and sale of such matters.
(xv) The terms and provisions of the shares of Common Stock conform Securities. In addition to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateforegoing, the Applications (obligation of an Agent to purchase Securities as amended or supplemented)principal, the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as pursuant to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables a Terms Agreement or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained shall be subject, in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesAgent’s discretion, to the extent such counsel deems proper and specified in such opinionfurther condition that there shall not have been, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The Agents' obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement On the date hereof, the Agents shall have been declared effective by received the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinionfollowing legal opinions, dated as of the Closing Datedate hereof and in form and substance reasonably satisfactory to the Agents:
(i) an opinion of the General Counsel or Associate General Counsel of the Company, substantially in the form heretofore delivered to each of you; and
(ii) an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable LLP or other counsel to the AgentCompany, substantially in the form and substance satisfactory heretofore delivered to each of you.
(b) On the Agent and counsel for date hereof, the Agent Agents shall have received a certificate of the Company, signed by the Chairman of the Board, the President, the Treasurer, any Assistant Treasurer, or any Vice President, dated as of the date hereof, to the effect that:
, to the best of the knowledge of the signer of such certificate (i) The Holding Company is a corporation duly organized and validly existing and in good standing under since the laws date of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank most recent financial statements included or incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described reference in the Prospectus, are permitted by federal law. To such counsel’s knowledgeas amended or supplemented, each there has been no material adverse change in the condition of the Holding Company and the Bank has obtained all licensesits subsidiaries, permitstaken as a whole, and other governmental authorizations from that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under Registration Statement and the caption “Capitalization,” and no shares of Common Stock have been Prospectus, as amended or will be issued and outstanding prior to the Closing Date; supplemented, (bii) the Shares to be subscribed for in the Offering will have been duly other representations and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment warranties of the consideration calculated as set forth Company contained in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement are true and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties correct in all material respects on and as of the date of such certificate, (iii) the Company has performed or appropriate waivers were obtained complied with all agreements and satisfied all notices and waiting periods were satisfied, waived conditions on its part to be performed or elapsed.
(xi) The Conversion Application and satisfied hereunder at or prior to the Holding Company Application have been approved by the OTSdate of such certificate, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xiiiv) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or and no proceedings for that purpose have been instituted or, to such counsel’s knowledge, or threatened by the CommissionSEC.
(xivc) The material tax consequences On the date hereof, the Agents shall have received a letter from the Company's independent public accountants, dated as of the Conversion are set forth date hereof and in the Prospectus under the captions “Summary – Tax Consequences” form and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ substance reasonably satisfactory to the Primary Parties Agents, confirming that they are independent public accountants with respect to such matters.
(xv) The terms the Company and provisions its subsidiaries within the meaning of the shares 1933 Act and the regulations promulgated thereunder (the "1933 Act Regulations"), and containing statements and information of Common Stock conform the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the description thereof financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(d) On the date hereof, counsel to the Agents shall have been furnished with such documents and opinions as such counsel may reasonably require for the form purpose of certificate enabling such counsel to be used pass upon the issuance and sale of Notes as herein contemplated, or in order to evidence the shares of Common Stock is in due accuracy and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws completeness of any of the Primary Partiesrepresentations and warranties, (ii) any violation or the fulfillment of any applicable lawof the conditions, act, regulation, order or court order, writ, injunction or decree, contained herein; and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed all proceedings taken by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified Company in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together connection with the opinion to issuance and sale of Notes as herein contemplated shall be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ satisfactory in form and substance to the effect Purchasing Agent and to counsel to the Agents. The obligations of the Purchasing Agent to purchase Notes as principal, both under this Agreement and under any Terms Agreement, are subject to the conditions that during (i) no stop order suspending the preparation effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated SEC and (ii) there shall have been no material adverse change in conferences with certain officers of and other representatives the condition of the Primary PartiesCompany and its subsidiaries, counsel to the Agenttaken as a whole, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained from that set forth in the Registration Statement and or the Prospectus, as supplemented or amended, each of which conditions shall be met on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package Terms Agreement and on the corresponding Settlement Date (as of defined herein). Further, if specifically called for by any written agreement by the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Purchasing Agent, with respect including a Terms Agreement, to purchase Notes as principal, the Purchasing Agent's obligations hereunder and under such agreement, shall be subject to such matters as the Agent may reasonably require; such opinion may relyadditional conditions, including those set forth in clauses (a), (b) and (c) above, as agreed to matters by the parties, each of fact, upon certificates of officers and directors of which such agreed conditions shall be met on the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇corresponding Settlement Date.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Selling Agent Agreement (Anheuser Busch Companies Inc)
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of a due diligence review satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures within the applicable time period prescribed for such filing and in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent’s counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Authority shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Issuer, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Issuer contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation or warranty is limited to a specified date, and the Primary Parties Issuer shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(ae) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 9, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1f) The opinionthe Offered Shares shall have been conditionally approved for listing on the CSE, dated as and the Agent shall have received evidence of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, same in form and substance satisfactory to the Agent, acting reasonably;
(g) the Issuer shall have delivered or caused to be delivered to the Agent and the Agent’s counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the Bank to representations or warranties contained herein; (ii) the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part fulfillment of any of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim conditions contained herein; or restriction.
(iii) The activities the accuracy and completeness of the Holding Company and the Bank, as described any information contained in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of ;
(h) the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are French Translation Exemption shall remain in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant without amendment adverse to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, Issuer or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).Agent; and
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting there shall not have occurred any event, matter or circumstance that would permit the invalidity of Agent to terminate this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement
Conditions to Agent’s Obligations. The obligations obligation of an Agent, as agent of the Agent hereunder Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the Commission reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the OPUC and the Conversion Application WUTC which permit the issuance and Holding Company Application shall have been approved by sale of the OTSSecurities in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTSby, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iiivi) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would there shall not have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely occurred: (A) as to matters involving a suspension or material limitation of trading in securities generally on the application New York Stock Exchange or in any securities of laws of the Company on the New York Stock Exchange or any jurisdiction other than relevant exchange or a material disruption in securities settlement or clearance services in the United States; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) any material adverse change in the financial markets in the United States, to any outbreak of hostilities or escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the extent effect of which, in the reasonable judgment of such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as long as such other opinion indicates that the Agent may rely principal on the opinion, terms and (B) as to matters of fact, to in the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder manner contemplated by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel this Agreement and, if applicable, local counselany Terms Agreement or other agreement; or (D) unless known to such Agent prior to such Solicitation Time, whose opinion(s) any downgrading, or any notice shall expressly authorize such reliance. The opinion have been given of such counsel for the Primary Parties may state that it is to be governed any intended or qualified by the Legal Opinion Accord potential downgrading, of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇Securities by either Moody's Investors Service or Standard & Poor's Rating Group. In additio▇ ▇▇ ▇▇▇▇▇▇ e foregoing, the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance such Agent's discretion, to the effect further condition that during the preparation of the Registration Statement and the Prospectusthere shall not have been, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application prospectus contained in the MHC-2 shall have been approved by the OTSOTS for mailing prior to the commencement of the Offering, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties’ best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties’ best knowledge, threatened by the OTS, the Commission Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇M▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (& A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably ▇▇▇▇▇▇ LLP acceptable to the Agent in form and substance satisfactory to counsel for Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified set forth in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991)Exhibit 1.
(2) The letter of M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, M▇▇▇▇▇▇ ▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants accounting firm for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(19(b)(1)), ) M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of M▇▇▇▇▇▇ ▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP that caused M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of L▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP& S▇▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇M▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP.
(c) Concurrently with the execution of this Agreement, Agent shall receive a letter from (i) C▇▇▇▇▇▇▇, ▇▇▇▇▇ LLP & Cha, P.C., dated the date hereof and addressed to Agent, such letter confirming that C▇▇▇▇▇▇▇, ▇▇▇▇▇ & Cha, P.C. is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Primary Parties is required by the MHC-2 or Item 13 of the Registration Statement, and stating in effect that in C▇▇▇▇▇▇▇, ▇▇▇▇▇ & Cha, P.C. opinion the financial statements of the Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and substance the related published rules and regulations of the Commission thereunder and the Conversion Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the minutes of the meetings of the Board of Directors of the Primary Parties, the Audit Committee of the Holding Company, a review of the unaudited interim financial information as of and for the interim period ending December 31, 2006 and the latest available unaudited quarterly financial statements of the Holding Company prepared by the Holding Company which shall be in accordance with Statement on Auditing Standards No. 100, and consultations with officers of the Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements and financial information included in the section titled “Recent Developments” are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, borrowings (defined as advances from the FHLB of New York, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Holding Company or decrease in assets, deposits, loan losses allowances or retained earnings of the Holding Company or there was any decrease in net income, non-interest income, tax expense or net interest income of the Holding Company or any increase in non-interest expense for the number of full months commencing immediately after the Recent Developments period and ended on the last month-end prior to the date of the Prospectus as compared to the corresponding period in the preceding year, which was material to the financial position or results of operations of the Primary Parties; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Holding Company, which are subject to the internal controls of the accounting system of the Holding Company and other data prepared by the Primary Parties directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, Agent shall receive a letter from C▇▇▇▇▇▇▇, ▇▇▇▇▇ & Cha, P.C. dated the Closing Date, addressed to Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 9, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(e) At the Closing Date, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, without personal liability to the effect that: (i) they have examined the Prospectus and at the time the Prospectus became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the earnings, capital, properties, business prospects or business affairs of the Primary Parties, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date; (iv) each of the Primary Parties has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date including the conditions contained in this Section 9; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, or the effectiveness of the Registration Statement has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OTS, the Commission, or any other federal or state authority; (vii) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan or to enjoin the Offering.
(g) At the Closing Date, Agent shall receive a letter from the Appraiser, dated as of the Closing Date, (i) confirming that during said firm is independent of the preparation Primary Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) None of the Primary Parties shall have sustained, since the date of the latest audited financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated and since the respective dates as of which information is given in conferences with certain officers the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of and other representatives operations of any of the Primary Parties, counsel otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of Agent there shall have been no material adverse change in the financial condition or in the earnings, capital, properties of the Primary Parties considered as one enterprise, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Primary Parties, representativesindependently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) none of the Primary Parties shall have received from the OTS or the FDIC any direction (oral or written, other than directions applicable to all federally chartered savings banks) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to Agent) and which would reasonably be expected to have a material and adverse effect on the condition (financial or otherwise) or on the earnings, capital or properties of the Primary Parties considered as one enterprise; (iv) none of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) 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 knowledge of the Primary Parties, threatened against any of the Primary Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a material and adverse effect on the financial condition or on the earnings, capital, properties or business affairs of the Primary Parties, considered as one enterprise; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or “blue sky” laws of the jurisdictions requested by Agent.
(j) At or prior to the Closing Date, Agent shall receive (i) a copy of the letter from the OTS authorizing the use of the Prospectus and approving the MHC-2, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) copies of certificates of existence for each of the Primary Parties, (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts, (v) a certificate of the FHLB of New York evidencing the Bank’s membership therein, and (vi) any other documents that Agent shall reasonably request.
(k) Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or the NASD or by order of the Commission or any other governmental authority other than temporary trading halts (A) imposed as a result of intraday changes in the Dow J▇▇▇▇ Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a material decline in the price of
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are in this Agreement shall be subject to the condition that all representations accuracy of and warranties of the Primary Parties herein contained arecompliance with, at and as of the commencement date hereof, and on each closing date for the sale of the Offering and at and as of the Closing Date, true and correctCommon Shares, the condition that representations, covenants, and warranties contained in Sections 4 and 6 hereof, the Primary Parties shall have performed all performance by the Company of their its obligations hereunder to be performed on or before such dates hereunder, and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinionreceived on or before the commencement date for the Offering an opinion from Paine, dated as of the Closing DateHamblen, of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ acceptable to & ▇▇▇▇▇▇ LLP, Spokane, Washington (the Agent, “Company Counsel”) satisfactory in form and substance satisfactory to the Agent and counsel for the Agent its counsel, to the effect that:
(i) The Holding Upon the commencement date of the Offering, the Company is will be a corporation duly organized and validly existing and company in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States State of AmericaAlaska, with full power fully authorized to transact the business in which it is engaged, and authority authorized to own its properties enter into this Agreement;
(ii) The Common Shares, Warrants and to conduct its business Common Shares issuable upon exercise of the Warrants when issued and sold will be validly and legally issued and the offering of the Common Shares, Warrants and Common Shares will be as described in the Prospectus; the activities minutes of the Bank as described in directors meeting authorizing the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.Offering;
(iii) The activities Offering will not result in the breach of any of the Holding Company and the Bankterms or conditions of, as described in the Prospectusor constitute a default under any loan commitment, are permitted by federal law. To agreement, or other instrument of which such counsel’s knowledge, each of the Holding Company and the Bank counsel has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, knowledge and to such counselwhich the Company is a party or violate any order of any court or any federal or state regulatory body or administrative agency having jurisdiction over the Company or over the Company’s knowledge the Holding Company and the Bank are complying therewith in all material respects.property;
(iv) The Bank To the best knowledge of such Company Counsel, upon reasonable inquiry, there is not in existence, pending nor threatened any action, suit or proceeding to which the Company or any director thereof is a member party before any court or governmental agency or body, which action, suit or proceeding might, if decided adversely, materially affect the subject matter of this Agreement, the Offering or the financial condition, business or prospects of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.Company;
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock disclosures to be issued made in the Offering, together with the Company’s offer to each subscriber to provide access to additional information, are sufficient to satisfy the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from “information requirements” of Rule 502 of Regulation D;
(vi) registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary Act of the Holding Company at Securities is not required for the Closing Date is offer and sale thereof to the Bank.investors in accordance with the provisions of this Agreement
(vii) Upon consummation In rendering the opinions to be set forth, the Company Counsel, as to factual matters, may rely upon certificates, statements, letters, representations or affidavits of the ConversionCompany and its officers, (a) the authorized, issued and outstanding capital stock any public records of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to and letters of independent certified public accountants.
(b) The Agent together with will receive on the opinion to be rendered hereunder by special counsel to commencement of the Primary Parties. The opinion of such counsel for Offering, a certificate from the Primary Parties shall state that it has no reason to believe Company stating that the Agent is not reasonably justified representations and warranties made in relying thereon. The opinion this Agreement are true and correct, as if made on the commencement date of such counsel for the Primary Parties also shall Offering; the certificate further will state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991)Company has complied with all agreements and covenants.
(2c) The letter Agent will receive on the commencement date of ▇▇▇▇▇ ▇▇▇▇▇▇ the Offering a survey prepared by Company Counsel and addressed to the Company and to the Agent relating to the securities laws of the jurisdictions in which the Company and the Agent have agreed to make offers to potential investors. This survey shall be referred to as the “Blue Sky Survey.” Company Counsel and the Agent shall agree upon the form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required statements to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained made in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)Blue Sky Survey.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Placement Agent Agreement (Little Squaw Gold Mining Co)
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issued, or proceedings therefor initiated or, complied with to the knowledge reasonable satisfaction of the Primary Parties, threatened by the OTS, the Commission or any other governmental body▇.▇. ▇▇▇▇▇▇ Securities LLC.
(b) At Neither the Closing DateRegistration Statement nor the Prospectus, as amended or supplemented, shall contain any 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 case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(c) Subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of such Agent, is so material and adverse as to make it impracticable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(d) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the laws of the State of MarylandUnited States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued executed and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights each Indenture has been duly qualified under the articles of incorporation or bylaws of Trust Indenture Act, and, assuming that each Indenture is the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution valid and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and legally binding obligation of the relevant Trustee, each Indenture constitutes a valid and legally binding obligation of the Primary Parties, Company enforceable against the Company in accordance with its terms, except subject to the extent that effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing;
(iii) The Securities have been duly authorized by the Company and, when the terms of the Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the respective Trustee or The Bank of New York Mellon, as Authenticating Agent under the applicable Indenture, on behalf of the Trustee in accordance with the provisions of Sections 11 and 12 hereof may be unenforceable as against public policythe relevant Indenture, and except upon payment and delivery in accordance with this Agreement and any applicable terms agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the extent that such enforceability may be limited by bankruptcy lawsbenefits of the applicable Indenture, insolvency lawssubject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing;
(iv) The issue and sale of the Securities by the Company, the execution, delivery and compliance by the Company with all the provisions of this Agreement and the execution and delivery by the Company of the Indentures will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Exchange Act Documents (as defined in such opinion), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York State statute or the rights Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York State statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York State statute or the Delaware General Corporation Law by any federal or New York State court or governmental agency or body having jurisdiction over the Company or any of creditors its subsidiaries or any of savings institutions insured by the FDIC (including laws and judicial decisions relating their properties or any Delaware State court or governmental agency or body acting pursuant to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank Delaware General Corporation Law, except that it is understood that no opinion is given in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions this paragraph with respect to any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) No consent, approval, authorization, order, registration or qualification of or with any federal or New York State governmental agency or body or any Delaware State governmental agency or body acting pursuant to the Conversion imposed Delaware General Corporation Law or, to the knowledge of such counsel, any federal or New York State court or any Delaware State court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the OTSCompany, the Commissionexecution, or any other governmental agency, if any, were complied with delivery and compliance by the Primary Parties Company with the applicable provisions of this Agreement and the execution and delivery by the Company of the Indentures, except such as have been obtained under the Act and the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Agents;
(vi) The statements made in the Prospectus under the captions “Description of the Notes” and “Description of Debt Securities”, insofar as they relate to the Securities and purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof, which are to be described in Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act and the Prospectus was filed on April 15, 2016, pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xive) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing each case such counsel (i) assumes that the terms of the Securities and any other than information relevant to the offering thereof will be included in the applicable prospectus supplement delivered to investors in such Securities and (ii) expresses no view with respect to the financial statementsstatements or other financial, notes to financial statements, financial tables and other financial and accounting or statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledgecontained in, no person has sought to obtain regulatory incorporated or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Datedeemed incorporated by reference in, or omitted from, the Registration Statement, including the Prospectus or the Exchange Act Documents (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which defined in such counsel need express no opinionletter), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.; and
(xviiiii) There are no legal or governmental proceedings pending, or, nothing has come to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent attention that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by causes such counsel and is accurate in all material respects.
to believe that (xxa) None of the Primary Parties is required Registration Statement (including the Exchange Act Documents incorporated or deemed to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement therein and the Prospectus and related matters were discussed and has considered the matters required deemed to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)a part thereof), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Timehereof, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading misleading, except that in each case such counsel (it being understood i) assumes that counsel need express the terms of the Securities and any other information relevant to the offering thereof will be included in the applicable prospectus supplement delivered to investors in such Securities and (ii) expresses no comment or opinion belief with respect to the financial statementsstatements or other financial, notes to financial statements, schedules and other financial and accounting or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3f) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of the Chief Executive Officer, any Vice Chairman, any Executive Vice President, the Chief Financial Officer, the Chief Operating Officer, the Corporate Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of his or her knowledge, are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(g) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements included in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus, or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(h) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents, one or more opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as it may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and other documents required to be delivered by this Section 5 were delivered at the office of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ LLP▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
(4) , on the date hereof, the time and date of such delivery being herein called the “Closing Date”. The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences Company will furnish each Agent with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativess
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder Company and the occurrence of the Closing and the Conversion are your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the 1933 Act or proceedings therefor initiated shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g) (2) under the Act and (B) no such organization shall have publicly announced that it has been placed under surveillance or any state authority and no order review, or other action suspending the authorization for use has changed its outlook with respect to, its rating of the Program Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(iii) The Prospectus, each Free Writing Prospectus or the consummation and all other Time of the Conversion Sale Information shall have been issued, or proceedings therefor initiated ortimely filed with the Commission under the Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the knowledge of extent required by Rule 433 under the Primary Parties, threatened by the OTS, the Commission or any other governmental bodyAct).
(b) At Subsequent to the Closing Datedate of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(c) Such Agent shall have received:
received (1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable if requested in writing to the AgentCompany) an opinion letter of King & Spalding LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Delivery Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the law of the State of Delaware, and SunTrust Bank has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of MarylandGeorgia, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse EffectProspectus.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Indenture has been duly authorized, executed and validly authorized delivered by all necessary corporate action on the part Company and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, assuming that the Indenture is the valid and legally binding obligation of the Holding Trustee, constitutes a valid and legally binding obligation of the Company and enforceable against the Bank and, upon payment therefor Company in accordance with its terms, subject to the terms effects of the Planbankruptcy, will be validly issuedinsolvency, fully paid fraudulent conveyance, reorganization, moratorium and nonassessable other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and will be owned an implied covenant of record good faith and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionfair dealing.
(iii) The activities This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Holding Company, enforceable against the Company and in accordance with its terms, subject to the Bankeffects of bankruptcy, as described in the Prospectusinsolvency, are permitted by federal law. To such counsel’s knowledgefraudulent conveyance, each of the Holding Company and the Bank has obtained all licensesreorganization, permits, moratorium and other governmental authorizations that are material for the conduct similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of its business, good faith and all such licenses, permits fair dealing and other governmental authorizations are in full force and effect, and subject to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respectsconsiderations of public policy.
(iv) The Bank is a member Notes have been duly authorized by the Company and, when the terms of the FHLB of Atlanta. The Bank is an insured depository institution under Notes and their issue and sale have been duly established in accordance with the Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the provisions of the Federal Deposit Insurance Act, as amendedIndenture, and no proceedings for upon payment and delivery in accordance with this Agreement, the termination or revocation Notes will constitute valid and legally binding obligations of the federal deposit insurance Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the Bank are pending orIndenture, subject to such counsel’s knowledgethe effects of bankruptcy, threatenedinsolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(v) The authorized capital stock issue and sale of the Bank consists Program Securities and the execution, delivery and performance by the Company of one million (1,000,000) shares this Agreement and the Indenture will not breach or result in a default under, any indenture, mortgage, deed of serial preferred stocktrust, par value $0.01 per shareloan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, and four million (4,000,000) share nor will such actions violate the Articles of common stock, par value $0.01 per share. When Incorporation or By-laws of the Company or any federal or New York statute or the Georgia Business Corporation Code or any rule or regulation that has been issued pursuant to any federal or New York statute or the PlanGeorgia Business Corporation Code or any order known to us issued pursuant to any federal or New York statute or the Georgia Business Corporation Code by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of except that it is understood that no opinion is given in this paragraph (v) with respect to any security interest, mortgage, pledge, lien federal or encumbrance. All of the shares of the Bank’s common stock state securities law or any rule or regulation issued pursuant to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actany federal or state securities law.
(vi) The Bank does not have No consent, approval, authorization, order, registration or qualification of or with any direct federal or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been New York governmental agency or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company body or any Georgia governmental agency or body acting pursuant to the Plan against payment Georgia Business Corporation Code or, to our knowledge, any federal or New York court or any Georgia court acting pursuant to the Georgia Business Corporation Code is required for the issue and sale of the consideration calculated as set forth in Program Securities and the Plan, will be fully paid and nonassessable; and (d) compliance by the issuance of Company with the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery provisions of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its termsIndenture, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent it is understood that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC no opinion is given in this paragraph (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ixvi) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board securities law or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversionany rule or regulation issued pursuant to any federal or state securities law.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act, ; and the Prospectus was filed on or before the date hereof pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings proceeding for that purpose have or pursuant to Section 8A under the Act has been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivviii) The material tax consequences of the Conversion are set forth statements made in the Prospectus under the captions caption “Summary – Tax ConsequencesDescription of Notes,” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ insofar as they purport to the Primary Parties with respect to such matters.
(xv) The constitute summaries of certain terms and provisions of the shares of Common Stock conform documents referred to the description thereof contained in the Registration Statement and the Prospectustherein, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as constitute accurate summaries of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form terms of such documents in all material respects with (subject to the requirements insertion in the Notes of the Conversion Regulations and all applicable lawsmaturity dates, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables interest rates and other financial similar terms thereof which are to be described in Term Sheets and statistical data included therein and Pricing Supplements to the appraisal valuation and the business plan as to which counsel need express no opinionProspectus). .
(ix) To such counsel’s knowledge, there are no person has sought contracts or documents of a character required to obtain regulatory be described in the Registration Statement or judicial review of Prospectus or to be filed as exhibits to the final action of the OTS in approving the ApplicationsRegistration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required.
(xviid) At Such Agent shall have received (if requested in writing to the time that Company) a letter of King & Spalding LLP, counsel for the Registration Statement became effective and Company or such other counsel as of is acceptable to such Agent, including in-house counsel, dated the Closing Delivery Date, to the effect that such counsel:
(i) advises you that each of the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statementsof its effective date, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan Prospectus, as of its date, appeared, on its face, to which such counsel need express no opinion)be appropriately responsive, complied as to form in all material respects with respects, to the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance applicable rules and regulations of the Shares.
(xix) The information Commission thereunder, except that in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” each case such counsel expresses no view with respect to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease financial statements or other instrument filed as an exhibit tofinancial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act reports incorporated therein; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that the Registration Statement at (including the time it was declared effective documents incorporated by reference in the Registration Statement on file with the Commission and on the effective date of the Registration Statement), as of the date of such letter or that the General Disclosure Package as of the Applicable Timeeffective date, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference in the Prospectus), as of its date and as of the date hereof, 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 made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to the financial statements, notes to financial statements, schedules and statements or other financial and or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act reports incorporated therein.
(3e) The favorable opinionSuch Agent shall have received (if requested in writing to the Company) a certificate, dated as of the Closing Delivery Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPthe Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, or any other Executive Officer of the Company named as an “executive officer” in the Company’s most recent Annual Report on Form 10-K, in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(f) Such Agent shall have received (if requested in writing to the Company) a letter of the Company’s independent registered public accounting firm, addressed jointly to the Board of Directors of the Company and such Agent, dated the Delivery Date and satisfactory to such Agent, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act, the applicable Rules and Regulations and the standards of the Public Company Accounting Oversight Board (United States) (the “PCAOB”), and stating in effect that (i) in their opinion, the Company’s consolidated financial statements audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the Rules and Regulations, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of certain officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) any material modifications should be made to the unaudited consolidated financial statements in the Prospectus for them to be in conformity with accounting principles generally accepted in the United States, (B) the unaudited consolidated financial statements in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the Rules and Regulations or are not stated on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus, (C) at the date of the latest available balance sheet read by such accounting firm, or at a subsequent specified date not more than five days prior to the Delivery Date, there was any change in the Company’s common stock, preferred stock, or long-term debt of the Company and its consolidated subsidiaries or any decrease in total stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) for the period from the closing date of the latest audited income statement included in the Prospectus to the closing date of the latest available income statement read by such accounting firm there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, in net interest income after provision for loan losses, or in net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(g) Such Agent shall have received (if requested in writing to the Company) from the counsel for the AgentAgents, one or more opinions and/or negative assurance letters, dated the Delivery Date, with respect to such the incorporation of the Company, the validity of the Program Securities, the Registration Statement, the Prospectus and other related matters as the Agent it may reasonably require; such opinion may rely, as and the Company shall have furnished to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativessuch documents
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and Commission, the Conversion Application shall have been approved by the OCC and the Holding Company Application shall have been approved by the OTSFederal Reserve Board, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTSOCC, the Federal Reserve Board, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse EffectExhibit C hereto. The opinion may be limited to matters governed by the laws of the United States States, the State of New York and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. that caused ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, the Prospectus or the General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇ ▇▇▇▇”), counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(4) The letter of ▇▇▇▇▇ ▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(3)), ▇▇▇▇▇ ▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or the Prospectus or the General Disclosure Package).
(35) The favorable opinion, dated as of the Closing Date, of A Blue Sky Memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. addressed to the Holding Company and the Agent relating to the offering, including Agent’s participation therein. The Blue Sky Memorandum will address the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(4c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from ▇▇▇▇▇▇▇▇▇▇ ▇▇, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇▇ LLP is a firm of independent registered public accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and stating in effect that in Rowle’s opinion the financial statements of the Bank included in the Prospectus comply as to form in all material respects with generally accepted accounting principles, the 1933 Act and substance the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of any unaudited interim financial statements of the Bank prepared by the Primary Parties as of and for any interim periods ended subsequent to March 31, 2012, a reading of the minutes of the meetings of the Board of Directors and Audit Committee of the Bank and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) any such unaudited financial statements and any “Recent Developments” information in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) during the period from the date of the Recent Developments information included in the Prospectus to a date not more than three business days prior to the date of the Prospectus there was any increase in non-performing loans, special mention loans, adversely classified assets, borrowings (defined as advances from the FHLB of Atlanta, securities sold under agreements to repurchase and any other form of debt other than deposits) of the Bank or decrease in assets, deposits, loan losses allowance, equity or retained earnings of the Bank or there was any decrease in net income, non-interest income, tax expense, net interest income, net interest income after provision for loan losses or increase in the provision for loan losses or interest expense of the Bank for the period commencing immediately after the Recent Developments period and ending not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iii) stating that, in addition to the audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (c), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding). On or prior to the date on which any Issuer-Represented Free Writing Prospectus is first used, upon the request of the Agent, the Agent shall receive a letter from ▇▇▇▇▇▇ similar to the letter, or letters, referenced above in this Section 10(c) addressing the financial and statistical information contained in such Issuer-Represented Free Writing Prospectus.
(d) At the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇▇ dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 10, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents and opinions as counsel for the Agent may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, to the effect that: (i) they have examined the Registration Statement and at the time the Registration Statement became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading; (ii) there has not been, since the respective dates as of which information is given in the Registration Statement, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date; (iv) the Primary Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date including the conditions contained in this Section 10; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Offering, the Conversion, the acquisition of all of the shares of the Bank by the Holding Company, the transactions required under the Plan to consummate the Conversion or the effectiveness of the Prospectus has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OCC, the Federal Reserve Board, the Commission or any other federal or state authority; and (vii) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan or to enjoin the Conversion.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date, (i) confirming that during said firm is independent of the preparation Primary Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties, as converted, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated and since the respective dates as of which information is given in conferences with certain officers the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective material change in, or affecting the general affairs of, management, financial position, retained earnings, long-term debt, stockholders’ equity or results of and other representatives operations of any of the Primary Parties, counsel otherwise than as set forth or contemplated in the Registration Statement and the Prospectus, the effect of which, in any such case described above, in the Agent’s reasonable judgment, is sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition or in the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, from and 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 transaction entered into by the Primary Parties, representativesindependently or considered as one enterprise, from the latest date as of which the financial condition of the Primary Parties is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) neither of the Primary Parties shall have received from the OCC, the FDIC, or the Federal Reserve Board any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither of the Primary Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder ▇▇▇▇▇▇▇▇▇ and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application Prospectus contained in the MHC-2 shall have been approved by the OTSOTS for mailing prior to the commencement of the Offering, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the OTS, the Commission Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., reasonably acceptable to the Agent, Agent in form and substance reasonably satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the State United States of MarylandAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effect.material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. 19 NEXT PAGE
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, duly organized and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; , and at is duly qualified to transact business and is in good standing in each jurisdiction in which the Closing Dateconduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, the issuance and sale earnings, capital, properties or business affairs of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionPrimary Parties.
(iii) The activities To the best of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s 's knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations authorization are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Indianapolis and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of the federal deposit such insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(v) The MHC is duly organized and validly existing as a federally chartered mutual holding company, duly authorized capital stock of to conduct its business and own its properties as described in the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, Registration Statement and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 ActProspectus.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.[Reserved]
(vii) Upon consummation of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing DateDate (except for the shares issued upon the Bank's reorganization into the mutual holding company form of organization); (b) the Shares shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares shares of Common Stock is not subject to preemptive rights under the articles of incorporation charter or bylaws of any of the Holding CompanyPrimary Parties, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document known to such counseldocument, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 and 12 hereof may be unenforceable as against public 20 NEXT PAGE policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by To counsel's knowledge, the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, Offering was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; and all terms, conditions, requirements and provisions with respect to the Conversion Offering imposed by the OTSCommission, the Commission, OTS or any other governmental agency, if any, were complied with by the Primary Parties Holding Company in all material respects or appropriate waivers were obtained and all notices notice and waiting periods were satisfied, waived or elapsed.
(x) The Plan has been duly adopted by the board of directors of the Holding Company in the manner required by the Offering Regulations.
(xi) The Conversion Application and the Holding Company Application have MHC-2 has been approved by the OTS, OTS and the Proxy Statement Prospectus has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvalsOTS approvals and clearance under applicable securities laws, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, Shares and the consummation of the ConversionOffering.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or issued, and, to such counsel's knowledge, no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commissionor threatened.
(xivxiii) The material tax consequences of the Conversion Offering are set forth in the Prospectus under the captions “Summary – caption "The Stock Offering - Tax Consequences” and “Federal and State TaxationEffects of the Subscription Rights.” " The information in the Prospectus under the captions “Summary – caption "The Stock Offering - Tax Consequences” and “Federal and State Taxation” Effects of the Subscription Rights" has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such mattersmaterial tax consequences of the Offering.
(xvxiv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form.
(xvixv) At the time the Applications were approved and as of the Closing DateMHC-2 was approved, the Applications (as amended or supplemented), the Prospectus MHC-2 (as amended or supplemented) and including the Proxy Statement (as amended or supplemented)Prospectus contained therein, complied as to form in all material respects with the requirements of the Conversion Offering Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.MHC-2. 21 NEXT PAGE
(xviixvi) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulationsrules and regulations promulgated thereunder.
(xviiixvii) There To such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Offering or the offer, sale or issuance of the Shares.
(xixxviii) The information in the Prospectus under the captions “Summary"How We Are Regulated,” “Supervision and Regulation,” “" "Taxation,” “" "Restrictions on the Acquisition of Fairmount BancorpMainStreet Financial Corporation and MainStreet Savings Bank, Inc.FSB,” “" "Description of Capital Stock” Stock of MainStreet Financial Corporation," and “"The Conversion and Stock Offering,” " to the extent that such information it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xix) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, charter or its bylaws or, to such counsel’s 's knowledge, any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effectmaterial adverse effect on the financial condition of the Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, except for such defaults as are described in the Prospectus with respect to that certain loan agreement with IBSM and as to which valid and effective waivers or forbearances have been obtained from IBSM. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any material violation of the provisions of the articles of incorporation or charter, as the case may be, charter or the bylaws of any of the Primary Parties, (ii) Parties or any material violation of any applicable law, act, regulation, or to such counsel's knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State States of MarylandNew Jersey and Michigan. In rendering such opinion regarding New Jersey law and Michigan law, such counsel may rely on local counsel reasonably acceptable to Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agentof good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; , provided copies of any such opinion(s) or certificates of public officials are 22 NEXT PAGE delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of Silver, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Silver, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants accounting firm for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(19(b)(1)), ) ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of Silver, ▇▇▇▇▇ ▇▇▇▇▇▇ that caused & ▇▇▇▇▇ , L.L.P. that caused Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made made, not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP▇▇, PC, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇.
(4) The letter of ▇▇ & ▇▇▇▇▇, L.L.P.
(c) Concurrently with the execution of this Agreement, Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance Company, LLC, dated the date hereof and addressed to the effect Agent, such letter confirming that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇(i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company, LLC is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder and 12 C.F.R. Section 571.2(c)(3), and no information concerning its relationship with or interests in the Primary Parties is required by the MHC-2 or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ LLP participated ▇▇▇▇▇▇ and Company, LLC's opinion the financial statements of the Holding Company included in conferences the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the Commission thereunder and the Offering Regulations and generally accepted accounting principles consistently applied; (ii) stating in effect that, on the basis of certain officers agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of and other representatives a reading of the minutes of the meetings of the Board of Directors of the Primary Parties, counsel to the Primary PartiesAudit Committee of the Holding Company, representativesa review of the unaudited interim financial information as of and for the interim period ending June 30, 2006 and the latest available unaudited quarter
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations obligation of an --------------------------------- Agent, as agent of the Agent hereunder Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the occurrence obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's discretion, to the conditions that: (i) all of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties Company herein contained are(and, in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as principal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in the Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as of the commencement of the Offering and principal, (E) at and as of the Closing each Settlement Date, true and correct(F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Primary Parties Company shall have performed all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the Public Utility Commission of Oregon and the Conversion Application Washington Utilities and Holding Company Application shall have been approved by Transportation Commission which are acceptable to the OTSAgents and which permit the issuance and sale of the Securities substantially in accordance with the terms and conditions of this Agreement, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall be pending before, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTSby, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iiivi) any violation there shall not have occurred: (A) a suspension or material limitation of any obligation, agreement, covenant trading in securities generally on the New York Stock Exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as New York State authorities; (C) an exhibit to, or incorporated engagement by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and in hostilities or any escalation of hostilities, the State effect of Maryland. In rendering which, in the judgment of such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as long as such other opinion indicates that the Agent may rely principal on the opinion, terms and (B) as to matters of fact, to in the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder manner contemplated by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel this Agreement and, if applicable, local counselany Terms Agreement or other agreement; or (D) any downgrading, whose opinion(s) or any notice shall expressly authorize such reliance. The opinion have been given of such counsel for the Primary Parties may state that it is to be governed any intended or qualified by the Legal Opinion Accord potential downgrading, of the ABA Section of Business Law (1991).
(2) The letter of Securities by either Moody's Investors Service or Standard & Poor's Corporat▇▇▇. ▇▇ ▇▇▇▇▇▇ in form and substance n addition to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ further condition that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of there shall not have been, since the date of such letter Terms Agreement or that other agreement or since the General Disclosure Package respective dates as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, information is given in the Registration Statement, any material adverse change in the condition, financial or Prospectus otherwise, or General Disclosure Package).
(3) The favorable opinionin the earnings, dated as business affairs or business prospects of the Closing DateCompany and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇business.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application, Holding Company Application and Holding Company Merger Application shall have been approved by the OTSOCC and the FRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Merger shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent▇, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing as a federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTSOCC and FRB; and at the Closing Date, the issuance and sale all of the issued and outstanding capital stock of the Bank to the Holding Company in the Conversion has been is duly authorized and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be is owned of record and beneficially by the Holding Company, Company free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The At the Closing and prior to the Merger, the authorized capital stock of the Bank Fullerton consists of one million (1,000,000( ) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000( ) share shares of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the BankFullerton’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the ConversionConversion Merger, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing DateDate except as described in the Prospectus; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Fairmount Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Fairmount Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank Fullerton in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The ConversionConversion Merger, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion Merger imposed by the OTSOCC, the FRB, the Commission, or any other governmental agency, if any, were complied with by the Primary Fairmount Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Merger Application have been approved by the OTSOCC, the Holding Company Application has been approved by the FRB, and the Proxy Statement has been authorized for use by the OTSOCC, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the ConversionConversion Merger.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank Fullerton has been authorized by the OTSOCC and the FRB, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State TaxationThe Conversion – Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State TaxationThe Conversion – Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTSOCC or the FRB, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Merger or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Fairmount Capital Stock,” “The Conversion Merger and the Offering,” “The Offering,” “The Conversion” and “The Conversion and Offering,Merger” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Fairmount Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Fairmount Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Fairmount Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Fairmount Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2xxii) The letter Fairmount Parties have the power and authority to consummate the transactions contemplated by the Agreement and Plan of ▇▇▇▇▇ ▇▇▇▇▇▇ in form Conversion Merger.
(xxiii) The Agreement and substance to Plan of Conversion Merger has been duly authorized and approved by the effect that during the preparation Board of Directors of each of the Registration Statement Fairmount Parties, and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers Agreement and Plan of Conversion Merger and other representatives the transactions contemplated thereby have been approved by the requisite vote of the Primary Fairmount Parties’ shareholders, as applicable, and duly authorized, executed and delivered by the Fairmount Parties, counsel to and the Agent, representatives Agreement and Plan of Conversion Merger constitutes the valid and binding obligation of the independent public accountants for the Primary Parties Fairmount Parties, enforceable in accordance with its terms subject to applicable bankruptcy, insolvency and representatives similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of the Agent at which the contents equity, whether applied in a court of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters law or a court of equity.
(xxiv) All acts, required to be stated therein taken by or on the part of the Fairmount Parties, including the approval of the Agreement and Plan of Conversion Merger by the shareholder of the Bank and the statements contained therein necessary approvals, consents, authorizations or notification required to be taken to consummate the transactions contemplated by the Agreement and Plan of Conversion Merger, have been properly taken or obtained; neither the execution and delivery of the Agreement and Plan of Conversion Merger nor the consummation of the transactions contemplated thereby, with or without the giving of notice or the lapse of time, or both, will (i) violate any provision of the charter or bylaws of the Fairmount Parties; or (ii) to the knowledge of such counsel, except as specifically contemplated by the Agreement and Plan of Conversion Merger, violate, conflict with, result in the material breach or termination of, constitute a material default under, accelerate the performance required by, or result in the creation of any material lien, charge or encumbrance upon any of the properties or assets of the Fairmount Parties pursuant to any indenture, mortgage, deed of trust, or other agreement or instrument to which the Fairmount Parties are a party or by which it or any of their properties or assets may be bound, or violate any statute, rule or regulation applicable to the Fairmount Parties, which would have a Material Adverse Effect on the Fairmount Parties; no consent, approval, authorization, order, registration or qualification of or with any court, regulatory authority or other governmental body, is required for the consummation by the Fairmount Parties of the transactions contemplated by the Agreement and Plan of Conversion Merger, other than those that have been obtained.
(xxv) To such counsel’s knowledge, there are no actions, suits, proceedings or investigations of any nature pending or threatened that challenge the validity or legality of the transactions contemplated by the Agreement and Plan of Conversion Merger which seek or threaten to restrain, enjoin or prohibit or to obtain substantial damages in connection with the consummation of such transactions.
(xxvi) To such counsel’s knowledge, there is no legal impediment to the continued operation by the Fairmount Parties of the properties and business of Fullerton in the ordinary course after the consummation of the transactions contemplated by the Agreement and Plan of Conversion Merger.
(xxvii) All conditions set forth in Article VI of the Agreement and Plan of Conversion Merger that relate to the Fairmount Parties have been satisfied, all statutory waiting periods with respect to all regulatory and governmental approvals of the Conversion Merger received by the Fairmount Parties have expired and, although (without limiting to such counsel’s knowledge, there are no facts or circumstances which would legally preclude the opinions provided Fairmount Parties from consummating the Conversion Merger pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness Agreement and Plan of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at Conversion Merger.
(xxviii) At the time it was declared effective by the Commission Applications were approved and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Merger Application shall have been approved by the OCC and the Holding Company Application shall have been approved by the OTSFRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion Merger shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable to the Agent▇, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing as a federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTSOCC and FRB; and at the Closing Date, the issuance and sale all of the issued and outstanding capital stock of the Bank to the Holding Company in the Conversion has been is duly authorized and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be is owned of record and beneficially by the Holding Company, Company free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The At the Closing and prior to the Merger, the authorized capital stock of the Bank Fullerton consists of one million thousand (1,000,0001,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company Company, to such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the BankFullerton’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the ConversionConversion Merger, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing DateDate except as described in the Prospectus; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Fairmount Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Fairmount Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank Fullerton in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The ConversionConversion Merger, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion Merger imposed by the OTSOCC, the FRB, the Commission, or any other governmental agency, if any, were complied with by the Primary Fairmount Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Merger Application have been approved by the OTSOCC, the Holding Company Application has been approved by the FRB, and the Proxy Statement has been authorized for use by the OTSOCC, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the ConversionConversion Merger.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank Fullerton has been authorized by the OTSOCC and the FRB, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State TaxationThe Conversion – Material Income Tax Consequences.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representativescaptions
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of ongoing due diligence reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Corporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Corporation contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, (or is updated as permitted by Section 4.7 or 9.3);
(e) the Primary Parties Corporation shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 8.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinionthe Placement Shares shall have been conditionally approved for listing on the TSX-V, dated as of subject only to fulfilling customary conditions with the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable TSX-V; and
(h) the Corporation shall have delivered or caused to the Agent, in form and substance satisfactory be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements information contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement (HIVE Blockchain Technologies Ltd.)
Conditions to Agent’s Obligations. The obligations obligation of the each Agent hereunder and the occurrence of the Closing and the Conversion are to solicit or receive offers to purchase Securities shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the 1933 Act or proceedings therefor initiated pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, the Prospectus and any Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion otherwise) shall have been issuedcomplied with to the reasonable satisfaction of the Lead Agent.
(i) No stop order suspending the effectiveness of the Registration Statement or suspending the qualification of the applicable Indenture shall have been issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) under the Act or proceedings therefor initiated pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the OTSCommission, the Prospectus and any Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act), and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Lead Agent.
(ii) (A) No downgrading shall have occurred in the rating accorded the Securities or any other governmental bodydebt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading).
(b) At Subsequent to the Closing Datedate of this Agreement and each Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries that is not described in the Time of Sale Information and, in the judgment of the Lead Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and the Time of Sale Information.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to the Lead Agent, in form and substance satisfactory to including in-house counsel, dated the Agent and counsel for the Agent Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws of the State of MarylandDelaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.Prospectus;
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Each Indenture has been duly authorized, executed and validly authorized delivered by all necessary corporate action on the part Company and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, assuming that each Indenture is the valid and legally binding obligation of its Trustee, constitutes a valid and legally binding obligation of the Holding Company and enforceable against the Bank and, upon payment therefor Company in accordance with its terms, subject to the terms effects of the Planbankruptcy, will be validly issuedinsolvency, fully paid fraudulent conveyance, reorganization, moratorium and nonassessable other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and will be owned an implied covenant of record good faith and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.fair dealing;
(iii) The activities Securities have been duly authorized by the Company and, when the terms of the Holding Securities and of their issue and sale have been duly established in accordance with the applicable Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when the Securities have been duly executed by the Company and duly authenticated by the Trustee or JPMorgan Chase Bank, National Association, as described in Authenticating Agent under the Prospectusapplicable Indenture, are permitted by federal law. To such counsel’s knowledge, each on behalf of the Holding Company Trustee in accordance with the provisions of the relevant Indenture, and upon payment and delivery in accordance with this Agreement and the Bank has obtained all licensesapplicable Terms Agreement, permitswill constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the benefits of the applicable Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and other governmental authorizations that are material for the conduct an implied covenant of its business, good faith and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.fair dealing;
(iv) The Bank is a member issue and sale of the FHLB Securities by the Company and the execution, delivery and performance by the Company of Atlanta. The Bank is an insured depository institution under this Agreement and the provisions performance of the Federal Deposit Insurance ActIndentures by the Company will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as amended, and no proceedings for an exhibit to the termination Registration Statement or revocation any of the federal deposit insurance Exchange Act Documents, nor will such actions violate the Certificate of Incorporation or By-laws of the Bank are pending orCompany or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except that it is understood that no opinion is given in this paragraph (iv) with respect to such counsel’s knowledge, threatened.any federal or state securities law or any rule or regulation issued pursuant to any federal or state securities law;
(v) The authorized capital stock No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Bank consists Securities by the Company and the compliance by the Company with all provisions of one million this Agreement and the Indentures, except that it is understood that no opinion is given in this paragraph (1,000,000v) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When with respect to any federal or state securities law or any rule or regulation issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien federal or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Actstate securities law.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth statements made in the Prospectus under the caption captions “Capitalization,Description of Notes” and no shares “Description of Common Stock have been or will be issued and outstanding prior Debt Securities”, insofar as they purport to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment constitute summaries of certain terms of the consideration calculated as set forth in the Plandocuments referred to therein, will be fully paid and nonassessable; and (d) the issuance constitute accurate summaries of the Shares is not subject to preemptive rights under the articles terms of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties documents in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth insertion in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance Securities of the Sharesmaturity dates, interest rates and other similar terms thereof which are to be described in Term Sheets and/or Pricing Supplements to the consummation of the Conversion.Prospectus);
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiiivii) The Registration Statement has become effective under the 1933 Act; and to knowledge of such counsel, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings and no proceeding for that purpose have has been instituted or, to or threatened by the Commission;
(viii) To such counsel’s knowledge, threatened there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required; and
(ix) This Agreement has been duly authorized, executed and delivered by the CommissionCompany.
(xivd) The material tax consequences Such Agent shall have received a letter of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in date it first became effective under the Registration Statement Securities Act, and the Prospectus, and the form as of certificate its date, appeared, on its face, to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateappropriately responsive, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with respects, to the requirements of the Conversion Regulations Securities Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no view with respect to the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables statements or other financial and or statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion)contained in, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal incorporated or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, Prospectus or the bylaws of any of the Primary Parties, Exchange Act Documents; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that (a) the Registration Statement at (including the time it was declared effective by Exchange Act Documents and the Commission and Prospectus deemed to be a part thereof), as of the date of such letter the most recent Annual Report on Form 10-K or that Quarterly Report on Form 10-Q, as applicable, was filed with the General Disclosure Package as of the Applicable TimeCommission, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (b) the Prospectus (including the Exchange Act Documents incorporated or deemed incorporated by reference therein), as of the date of the Prospectus or as of the date hereof, 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 made, not misleading misleading, except that such counsel expresses no belief in either of clauses (it being understood that counsel need express no comment a) or opinion (b) above with respect to the financial statements, notes to financial statements, schedules and statements or other financial and or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, or the Prospectus or General Disclosure Package)the Exchange Act Documents.
(3e) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇the Chairman of the Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or any other Executive Officer of the Company in which such officer shall state, to the best of his or her knowledge after reasonable investigation, that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(f) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed jointly to the Company and the Agents, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and related regulations adopted by the Commission, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five business days prior to the Closing Date, there was any change in the Company’s common stock or preferred stock, increase in long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, net interest income after provision for loan losses, or net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the Prospectus as amended and supplemented on the date of such letter. All financial statements included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(g) Such Agent shall have received from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the AgentAgents, one or more opinions, dated the Closing Date, with respect to such the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Agent it may reasonably require; such opinion may rely, as and the Company shall have furnished to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. The opinions, certificates, letters and upon other documents required to be delivered by this Section 6 were delivered at the opinion office of the Company at ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Conditions to Agent’s Obligations. The obligations Your obligation to solicit or receive offers to purchase Program Securities as an agent of the Agent hereunder Company and the occurrence of the Closing and the Conversion are your obligation to purchase Program Securities as principal pursuant to any Terms Agreement shall be subject to the condition that continued accuracy in all material respects of the representations and warranties of the Primary Parties herein contained areCompany set forth herein, at to the performance by the Company of its obligations hereunder and as to each of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditionsadditional conditions precedent:
(ai) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no No stop order or other action suspending the effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been issued under the 1933 Act or and no proceedings therefor initiated for that purpose shall have been instituted or, to the knowledge of the Primary PartiesCompany or such Agent, threatened shall be contemplated by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the such Agents.
(ii) (A) No downgrading shall have occurred in the rating accorded the Program Securities or any other debt securities of the Company by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (B) no such organization shall have publicly announced that it has under surveillance or any state authority and no order review, or other action suspending the authorization for use has changed its outlook with respect to, its rating of the Prospectus Program Securities or the consummation of the Conversion shall have been issued, any other debt securities or proceedings therefor initiated or, to the knowledge preferred stock of the Primary Parties, threatened or guaranteed by the OTS, the Commission or any Company (other governmental bodythan an announcement with positive implications of a possible upgrading).
(b) At Subsequent to the Closing Datedate of this Agreement and any Terms Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries that is, in the judgment of such Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus.
(c) Such Agent shall have received:
(1) The opinion, dated as received an opinion letter of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acceptable to the Agent& ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent and counsel for the Agent Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the effect that:
(i) The Holding Company has been duly incorporated and is a corporation duly organized and validly existing and in good standing as a corporation under the laws of the State of MarylandDelaware, and JPMorgan Chase Bank has been duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of New York, in each case with full corporate power and authority to own its properties and to conduct its business as described in the Prospectus Registration Statement and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse EffectProspectus.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Indenture has been duly authorized, executed and validly authorized delivered by all necessary corporate action on the part Company and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, assuming that the Indenture is the valid and legally binding obligation of the Holding Trustee, constitutes a valid and legally binding obligation of the Company and enforceable against the Bank and, upon payment therefor Company in accordance with its terms, subject to the terms effects of the Planbankruptcy, will be validly issuedinsolvency, fully paid fraudulent conveyance, reorganization, moratorium and nonassessable other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and will be owned an implied covenant of record good faith and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restrictionfair dealing.
(iii) The activities of This Agreement has been duly authorized, executed and delivered by the Holding Company and the Bank, as described in Terms Agreements have been duly authorized by the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respectsCompany.
(iv) The Bank is a member Unit Agreement and Warrant Agreements have been duly authorized by the Company and, when duly executed and delivered by the Company will be valid and legally binding agreements of the FHLB Company enforceable against the Company in accordance with their terms, subject to the effects of Atlanta. The Bank is bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an insured depository institution under the provisions implied covenant of the Federal Deposit Insurance Act, as amended, good faith and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatenedfair dealing.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will Notes have been duly authorizedauthorized by the Company and, validly issued when the terms of the Notes and fully paid their issue and nonassessable sale have been duly established in accordance with the Indenture and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the provisions of the Indenture, and upon payment and delivery in accordance with this Agreement, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be exempt from registration under entitled to the 1933 Actbenefits of the Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at law); and an implied covenant of good faith and fair dealing.
(vi) The Bank does not Warrants have any direct or indirect subsidiaries been duly authorized by the Company and, when the applicable Warrant Agreement has been duly executed and delivered and the only subsidiary terms of the Holding Warrants and their issue and sale have been duly established in accordance with the applicable Warrant Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and the Warrants have been duly executed by the Company and duly countersigned by the Warrant Agent in accordance with the applicable Warrant Agreement, and upon payment and delivery in accordance with this Agreement, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and will be entitled to the benefits of the applicable Warrant Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in a proceeding in equity or at the Closing Date is the Banklaw); and an implied covenant of good faith and fair dealing.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will The Units have been duly authorized by the Company and, when the Unit Agreement has been duly executed and validly authorized for issuancedelivered and the terms of the Units and their issue and sale have been duly established in accordance with the Unit Agreement and this Agreement so as not to violate any applicable law or agreement or instrument then binding on the Company, and when issued and delivered the Units have been duly executed by the Holding Company pursuant and duly countersigned by the Unit Agent in accordance with the Unit Agreement, and upon payment and delivery in accordance with this Agreement, the Units will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms and entitled to the Plan against payment benefits of the consideration calculated as set forth Unit Agreement, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally; general equitable principles (whether considered in the Plan, will be fully paid and nonassessablea proceeding in equity or at law); and (d) the issuance an implied covenant of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plangood faith and fair dealing.
(viii) The execution issue and sale of the Program Securities and the execution, delivery and performance by the Company of this Agreement, the Indenture, the Warrant Agreements and the Unit Agreement will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement, nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties.
(ix) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Program Securities by the Company or the compliance by the Company with the provisions of this Agreement and the consummation Indenture, except for registration under the Act of the transactions contemplated hereby have been duly authorized by all necessary corporate action on Program Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the part purchase and distribution of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured Program Securities by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the BankAgents.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act; and the Prospectus was filed on May 7, 2004 pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and to such counsel’s knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings to our knowledge no proceeding for that purpose have has been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivxi) The material tax consequences of the Conversion are set forth statements made in the Prospectus under the captions “Summary – Tax ConsequencesDescription of Notes,” “Description of Debt Securities,” “Description of Warrants” and “Federal and State Taxation.Description of Units,” The information insofar as they purport to constitute summaries of certain terms of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects (subject to the insertion in the Notes, the Warrants and/or the Units of certain terms which are to be described in pricing supplements to the Prospectus).
(xii) To such counsel’s knowledge, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus under or to be filed as exhibits to the captions “Summary – Tax Consequences” Registration Statement or incorporated by reference therein which are not described and “Federal and State Taxation” has been reviewed filed or incorporated by such counsel and fairly describes such opinion rendered by such counsel and reference as required.
(d) Such Agent shall have received a letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company or such other counsel as is acceptable to such Agent, including in-house counsel, dated the Closing Date, to the Primary Parties with respect to effect that such matters.counsel:
(xvi) The terms and provisions advises you that each of the shares Registration Statement, as of Common Stock conform to the description thereof contained in the Registration Statement its effective date, and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Dateits date, the Applications (as amended or supplemented)was, the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented)on its face, complied as to form appropriately responsive, in all material respects with respects, to the requirements of the Conversion Regulations Act and all the applicable laws, rules and regulations and decisions and orders of the OTSCommission thereunder, except as modified or waived that in writing (other than each case such counsel expresses no belief with respect to the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables statements or other financial and or statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion)contained in, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal incorporated or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or deemed incorporated by reference in, or omitted from the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, Prospectus; and
(ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the such counsel’s attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ causes such counsel to believe that the Registration Statement at (including the time it was declared effective documents incorporated by reference in the Registration Statement on file with the Commission and on the date of this Agreement), as of the date of such letter or that the General Disclosure Package as of the Applicable Timethis Agreement, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus (including the documents incorporated by reference in the Prospectus), as of the date hereof, 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 made, not misleading (it being understood misleading, except that in each case such counsel need express expresses no comment or opinion belief with respect to the financial statements, notes to financial statements, schedules and statements or other financial and or statistical data includedcontained in, incorporated or deemed incorporated by reference in, or statistical or appraisal methodology employed, in omitted from the Registration Statement, Statement or Prospectus or General Disclosure Package)the Prospectus.
(3e) The favorable opinionSuch Agent shall have received a certificate, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors Chairman of the Primary Parties delivered pursuant hereto Board, the President, any Vice-Chairman, the Chief Financial Officer, the Treasurer or as any other Executive Officer of the Company in which such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance officer shall state, to the effect best of his or her knowledge after reasonable investigation, that during the preparation representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the date of such certificate, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated there has been no material adverse change in conferences the financial position or results of operations of the Company and its subsidiaries, except as set forth in or contemplated by the Prospectus or as described in such certificate.
(f) Such Agent shall have received a letter of PricewaterhouseCoopers LLP, addressed to the Company and such Agent, dated the Closing Date and satisfactory to such Agent, confirming that they are independent public accountants within the meaning of the Act and the Rules and Regulations, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Prospectus comply as to form in all material respects with certain officers the applicable accounting requirements of the Act and the Rules and Regulations, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible for financial and accounting matters and other representatives specified procedures, nothing came to their attention that caused them to believe that (A) the unaudited financial statements in the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Primary PartiesAct and the Rules and Regulations or are not stated on a basis substantially consistent with that of the audited financial statements included in the Prospectus, counsel (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the Primary PartiesClosing Date, representativesthere was any change in the Company’s common stock, preferred stock, or long-term debt of the Company and its consolidated subsidiaries or any decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest audited income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in the consolidated net interest income, in net interest income after provision for loan losses, or in net income or net income per common share of the Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from su
Appears in 1 contract
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of ongoing due diligence reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Corporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Corporation contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, (or is updated as permitted by Section 4.7 or 9.3);
(e) the Primary Parties Corporation shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 8.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinionthe Placement Shares shall have been conditionally approved for listing on the TSX, dated as of subject only to fulfilling customary conditions with the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable TSX; and
(h) the Corporation shall have delivered or caused to the Agent, in form and substance satisfactory be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, Placement Shares as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does not have any direct or indirect subsidiaries and the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Companyherein contemplated, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened confirm: (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws accuracy of any of the Primary Parties, representations or warranties contained herein; (ii) any violation the fulfillment of any applicable law, act, regulation, order of the conditions contained herein; or court order, writ, injunction or decree, and (iii) any violation the accuracy and completeness of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements information contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement
Conditions to Agent’s Obligations. 11.1 The obligations of the Agent hereunder and with respect to any sale of Placement Shares (other than the occurrence of the Closing and the Conversion are obligations in Section 2.3) shall be subject to the condition completion by the Agent of ongoing due diligence reviews satisfactory to the Agent in its sole and reasonable judgment, and to the continuing satisfaction (or waiver by the Agent, in its sole and unfettered discretion) of the following additional conditions:
(a) the Prospectus Supplement shall have been filed with the Qualifying Authorities under the Shelf Procedures and the Passport Procedures in accordance with Section 9.1(b) hereof and all requests for additional information on the part of the Qualifying Authorities shall have been complied with to the satisfaction of the Agent and the Agent's counsel, acting reasonably;
(b) no Supplementary Material (other than documents incorporated by reference and required to be filed pursuant to NI 51-102) shall have been filed to which the Agent, acting reasonably, objects;
(c) at the Placement Time and at the Settlement Date for such Placement Shares, no order, ruling or direction of any Qualifying Authority or other Governmental Body shall have been issued that has the effect of:
(i) ceasing, suspending or otherwise restricting the trading of such Placement Shares or any other securities of the Corporation, or
(ii) preventing, suspending or otherwise restricting the use of the Prospectus or any other prospectus or qualifying document relating to the distribution of such Placement Shares, or
(iii) suspending the qualification of such Placement Shares for offering, distribution or resale in any jurisdiction, and no proceedings for any such purpose shall have been initiated, announced or threatened;
(d) all representations and warranties of the Primary Parties Corporation contained herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, in any certificates delivered pursuant hereto shall be true and correct, with the condition same force and effect as if then made, except to the extent that any such representation and warranty is limited to a specified date, (or is updated as permitted by Section 4.7 or 9.3);
(e) the Primary Parties Corporation shall have performed complied with all of their obligations hereunder agreements and all conditions on its part theretofore to be performed on or before such dates and to the following further conditions:satisfied hereunder;
(af) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and Holding Company Application shall have been approved by the OTS, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:received all documents required to be delivered or furnished to the Agent pursuant to Section 8.2, in each case on or before the date on which delivery of such document is required pursuant to this Agreement;
(1g) The opinion, dated as the Corporation shall have duly notified the CSE of the Closing Date, issuance of ▇▇▇▇▇ ▇▇▇▇▇▇ acceptable the Placement Shares and the CSE shall not have objected thereto or denied the listing thereof;
(h) the Corporation shall have delivered or caused to the Agent, in form and substance satisfactory be delivered to the Agent and the Agent's counsel such other certificates or other documents as they may reasonably request for the Agent purpose of enabling them to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in Maryland and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a federally chartered mutual savings bank incorporated under the laws of the United States of America, and pass upon consummation of the Conversion, the Bank will be a validly existing federally chartered stock savings bank duly incorporated as a federal stock savings bank and validly existing under the laws of the United States of America, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the OTS; and at the Closing Date, the issuance and sale of the capital stock Placement Shares as herein contemplated, or in order to evidence or confirm: (i) the accuracy of any of the Bank to representations or warranties contained herein; (ii) the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part fulfillment of any of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim conditions contained herein; or restriction.
(iii) The activities the accuracy and completeness of the Holding Company and the Bank, as described any information contained in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of ;
(i) the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are ATM Decision shall remain in full force and effect, and without amendment adverse to such counsel’s knowledge the Holding Company and Corporation or the Bank are complying therewith in all material respects.Agent; and
(ivj) The Bank is a member of the FHLB of Atlanta. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(v) The authorized capital stock of the Bank consists of one million (1,000,000) shares of serial preferred stock, par value $0.01 per share, and four million (4,000,000) share of common stock, par value $0.01 per share. When issued pursuant to the Plan, shares of such common stock will be owned beneficially and of record solely by the Holding Company free and clear of any security interest, mortgage, pledge, lien or encumbrance. All of the shares of the Bank’s common stock to be issued to the Holding Company, when issued to the Holding Company, will have been duly authorized, validly issued and fully paid and nonassessable and will be exempt from registration under the 1933 Act.
(vi) The Bank does there shall not have occurred any direct event, matter or indirect subsidiaries and circumstance that would permit the only subsidiary of the Holding Company at the Closing Date is the Bank.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior Agent to the Closing Date; (b) the Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of terminate this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the Holding Company and the Bank and has been approved by the members of the Bank in the manner required by the Conversion Regulations and the charter and bylaws of the Bank.
(x) The Conversion, including the Offering, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders; all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or elapsed.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, and the Proxy Statement has been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion.
(xii) The purchase by the Holding Company of all of the issued and outstanding common stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary – Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented) and the Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Summary,” “Supervision and Regulation,” “Taxation,” “Restrictions on Acquisition of Fairmount Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties is required to be registered as an “investment company” as such term is defined in the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the articles of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the State of Maryland. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. The opinion of such counsel for the Primary Parties may state that it is to be governed or qualified by the Legal Opinion Accord of the ABA Section of Business Law (1991).
(2) The letter of ▇▇▇▇▇ ▇▇▇▇▇▇ in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇ ▇▇▇▇▇▇ participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇▇ ▇▇▇▇▇▇ has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing, nothing has come to the attention of ▇▇▇▇▇ ▇▇▇▇▇▇ that caused ▇▇▇▇▇ ▇▇▇▇▇▇ to believe that the Registration Statement at the time it was declared effective by the Commission and as of the date of such letter or that the General Disclosure Package as of the Applicable Time, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading (it being understood that counsel need express no comment or opinion with respect to financial statements, notes to financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, or Prospectus or General Disclosure Package)13.1.
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require; such opinion may rely, as to matters of fact, upon certificates of officers and directors of the Primary Parties delivered pursuant hereto or as such counsel may reasonably request and upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇.
(4) The letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Primary Parties, representatives
Appears in 1 contract
Sources: Equity Distribution Agreement