Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions: (a) The Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the Commission, the 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 therefore initiated or, to any of the Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ knowledge, threatened by the Department, the FDIC, the OTS, the Commission, or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent as set forth in Exhibit C hereto. The opinion may be limited to matters governed by the laws of the United States and the Commonwealth of Pennsylvania. In rendering such opinion regarding Pennsylvania law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereon. (2) The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 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 9(b)(1)) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. to believe that the Registration Statement and the Prospectus 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package). (3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP. (4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law. (c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the 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, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100, 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, without personal liability 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 Prospectus, any Material Adverse Effect; (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 their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization. (g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent. (j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Dep
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates and to the following further conditions:
(a) The Conversion shall have been approved by the Department and the FDICOTS. The Registration Statement shall have been declared effective by the Commission, the 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 therefore initiated or, to 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 Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ best knowledge, threatened by the Department, the FDIC, the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., P.C., and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent to the effect that:
(i) The Company is a corporation duly organized and validly existing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing Pennsylvania-chartered savings association in mutual form and, following the Conversion, will be a duly organized and validly existing Pennsylvania-chartered savings association in stock form with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the Department and the OTS; the issuance and sale of the Common Stock of the Bank to the Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the 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 Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Bank described in the Prospectus are permitted under federal law to a federally chartered savings association. To the best of such counsel’s knowledge, each of the Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, all such licenses, permits and other governmental authorization are in full force and effect, and the Company and the Bank are complying therewith in all material respects.
(iv) The Bank is a member of the FHLB of Pittsburgh 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 such insurance are pending or threatened.
(v) The Charitable Foundation has been duly authorized and incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and no approvals are required to establish the Charitable Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those imposed by the Department or the OTS.
(vi) The authorized capital stock of the Company consists of shares of Common Stock and shares of preferred stock, no par value per share; no shares of Common Stock or preferred stock will be issued and outstanding prior to the Closing Date. Immediately upon consummation of the Reorganization, (a) the issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption “Capitalization,”; (b) the shares of Common Stock of the Company to be subscribed for in the Offering and the Charitable Shares issued to the Charitable Foundation will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration (or contributed to the Charitable Foundation as it relates to the Charitable Shares) calculated as set forth in Exhibit C hereto. the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock and the Charitable Shares are not subject to preemptive rights under the charter or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vii) The opinion 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 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited to matters governed 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 relating to the rights of the United States contracting parties to equitable remedies).
(viii) The Plan has been duly adopted by the Board of Directors of the Bank and by the corporators of the Bank in the manner required by the Conversion Regulations and the Commonwealth Bank’s charter and bylaws.
(ix) The Reorganization, including the Conversion and the 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 Reorganization imposed by the Commission, the Department, the OTS, or any other governmental agency, if any, were complied with by the Bank in all material respects or appropriate waivers were obtained and all notice and waiting periods were satisfied, waived or elapsed.
(x) The Applications have been approved by the Department and the OTS and subject to the satisfaction of Pennsylvania. In rendering any conditions set forth in such approvals and clearance under applicable securities laws, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Reorganization.
(xi) The purchase by the Company of all of the issued and outstanding Common Stock of the Bank has been authorized by the Department and the OTS, and no action has been taken, or to such counsel’s knowledge, is pending or threatened, to revoke any such authorization or approval.
(xii) The Registration Statement is effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(xiii) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption “Summary - Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the caption “Summary - Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion regarding Pennsylvania rendered by such counsel to the Primary Parties with respect to such matters.
(xiv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xv) At the time the Applications were approved and as of the Closing Date, the Applications (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 Department, and the OTS, as applicable, except as modified or waived in writing by the Department and the OTS, as applicable (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 Department and the OTS, as applicable, approving the Applications.
(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 counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xvii) To such counsel’s knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares.
(xviii) The information in the Prospectus under the captions “Regulation,” “Federal and State Taxation,” “Restrictions on Acquisition of ESSA Bancorp, Inc.,” “Description of Capital Stock” and “The Conversion,” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel may rely and is accurate in all material respects.
(xix) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xx) The Bank has duly adopted a Pennsylvania stock charter and bylaws effective upon consummation of the Reorganization and none of the Primary Parties is in violation of its charter or its bylaws or, to such counsel’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 effect on local counsel reasonably acceptable to the Agent and its counselfinancial 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. 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 any material violation of the provisions of the charter or the bylaws of any of the Primary 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. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(2) The letter of Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance , P.C. to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , 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 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 9(b)(1)) Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , 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 Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , P.C. that caused Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , P.C. to believe that the Registration Statement and the Prospectus 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood Sinon 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ Pomerenck & ▇▇▇▇▇▇▇ L.L.P. , P.C. relating to the Offeringoffering relating to the offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ Pomerenck & ▇▇▇▇▇▇▇ L.L.P. , P.C. shall state the Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ S.R. ▇▇▇▇▇▇ Company LLP▇▇▇▇, ▇.▇., dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ S.R. ▇▇▇▇▇▇ Company LLP ▇▇▇▇, ▇.▇., 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and (ii) stating in effect that in ▇▇▇▇▇ S.R. ▇▇▇▇▇▇ Company LLP▇▇▇▇, ▇.▇.’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the 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, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100, 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, without personal liability 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 Prospectus, any Material Adverse Effect; (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 their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Depinclu
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing DateTime, true and correctcorrect in all material respects, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) The Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the Commission, the 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 therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Department, the FDIC, the OTS, the Commission, or any other governmental body.
(b) At the Closing DateTime, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing DateTime, of Elias, Matz, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, and/or local as special counsel acceptable to the Agent independent directors of PMMHC, in form and substance satisfactory to counsel for the Agent Agent, to the effect that:
(i) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) PMMHC is a duly incorporated and validly subsisting Pennsylvania mutual holding company with corporate power and authority to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) PMHC is a duly incorporated and validly subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iv) PMIC is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. PMIC has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(v) American Millers is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. American Millers has the requisite corporate power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(vi) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, having such par value, if any, as the board of directors shall fix and determine; HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the issued and outstanding capital stock of HoldCo will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of HoldCo to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in Exhibit C hereto. the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan and restrictions arising under the 1998 Order.
(vii) The opinion 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 to matters governed by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally.
(viii) The Plan has been duly adopted by the Board of Directors of PMMHC in the manner required by PMMHC’s articles of incorporation and bylaws.
(ix) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission, the Department, or any other Pennsylvania governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the United States Shares will be offered.
(x) The Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(xi) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Commonwealth Prospectus, insofar as such statements purport to summarize certain provisions of Pennsylvania. In rendering the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof, and the forms of certificates proposed to be used to evidence the shares of Common Stock of HoldCo comply in all material respects with all applicable laws and regulations, including, without limitation, as to form.
(xii) At the time that the Registration Statement became effective, the Registration Statement, including the Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) To such opinion regarding Pennsylvania lawcounsel’s knowledge, such counsel may rely on local counsel reasonably acceptable there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions “BUSINESS — “ Regulation,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” and “DESCRIPTION OF CAPITAL STOCK,” to the Agent and extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form S-1.
(xv) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xvi) To such counsel’s knowledge, none of the Primary Parties is in violation of its counselarticles of incorporation or its bylaws as in effect at the Closing Time. In addition, to such counsel’s knowledge, 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 any material violation of the provisions of the articles of incorporation or the bylaws (or other constituent documents) of any of the Primary 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. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems properwithout independent investigation, on certificates of responsible officers of the Primary Parties (to the extent relevant) 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 hereunder. Such opinion may be limited to the Primary Parties. The laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereonany other state.
(2) The A letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇, ▇▇▇▇▇ L.L.P. in form and substance & Bockius LLP addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public 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 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 9(b)(110(b)(1)) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇, ▇▇▇▇▇ L.L.P. & Bockius 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 foregoinginformation obtained in the course of engagement as special counsel, nothing has come to the attention of Elias, Matz, the representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP providing services to the Company that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. them to believe that (i) the Registration Statement and the Prospectus at the time it was declared ordered effective by the Commission and as of the date of such letter or that Commission, (ii) the General Disclosure Package as of the Applicable Closing Time, or (iii) the Prospectus, as of its date and as of the Closing 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 not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and the Prospectus, and counsel need not express no comment or opinion any belief with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateTime, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇counsel to the Primary Parties or other counsel acceptable to the Agent.
(4) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. addressed to the Primary Parties and the Agent relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to 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 ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding)Exhibit C hereto.
(d) At the Closing DateTime, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP dated the Closing DateTime, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100above, the “specified date” referred to in clause (ii)(Biii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing DateTime.
(e) At the Closing DateTime, the Shares shall have been approved for listing on the NASDAQ Global Market.
(f) At the Closing Time, 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 Shares 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.
(fg) At the Closing DateTime, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated as of the Closing DateTime, without personal liability to the effect that: (i) they have examined the Registration Statement Prospectus and at the time the Registration Statement 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 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 EffectEffect (as defined in Section 6(m)), whether or not arising in the ordinary course of business other than as disclosed in the Prospectus; (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 DateTime; (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 Time including the conditions contained in this Section 910; (v) no stop order has been issued or, to the their knowledge, is threatened, by the Commission or any other governmental body; and (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledgeand, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Dep
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing DateTime, true and correctcorrect in all material respects, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) The Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the Commission, the 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 therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Department, the FDIC, the OTS, the Commission, or any other governmental body.
(b) At the Closing DateTime, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing DateTime, of Elias, Matz, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, and/or local as special counsel acceptable to the Agent independent directors of PMMHC, in form and substance satisfactory to counsel for the Agent Agent, to the effect that:
(i) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) PMMHC is a duly incorporated and validly subsisting Pennsylvania mutual holding company with corporate power and authority to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) PMHC is a duly incorporated and validly subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iv) PMIC is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. PMIC has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(v) American Millers is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. American Millers has the requisite corporate power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(vi) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, having such par value, if any, as the board of directors shall fix and determine; HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the issued and outstanding capital stock of HoldCo will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of HoldCo to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in Exhibit C hereto. the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan and restrictions arising under the 1998 Order.
(vii) The opinion 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 to matters governed by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally.
(viii) The Plan has been duly adopted by the Board of Directors of PMMHC in the manner required by PMMHC’s articles of incorporation and bylaws.
(ix) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission, the Department, or any other Pennsylvania governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the United States Shares will be offered.
(x) The Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(xi) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Commonwealth Prospectus, insofar as such statements purport to summarize certain provisions of Pennsylvania. In rendering the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof, and the forms of certificates proposed to be used to evidence the shares of Common Stock of HoldCo comply in all material respects with all applicable laws and regulations, including, without limitation, as to form.
(xii) At the time that the Registration Statement became effective, the Registration Statement, including the Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) To such opinion regarding Pennsylvania lawcounsel’s knowledge, such counsel may rely on local counsel reasonably acceptable there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions “BUSINESS — “ Regulation,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” and “DESCRIPTION OF CAPITAL STOCK,” to the Agent and extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form S-1.
(xv) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xvi) To such counsel’s knowledge, none of the Primary Parties is in violation of its counselarticles of incorporation or its bylaws as in effect at the Closing Time. In addition, to such counsel’s knowledge, 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 any material violation of the provisions of the articles of incorporation or the bylaws (or other constituent documents) of any of the Primary 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. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems properwithout independent investigation, on certificates of responsible officers of the Primary Parties (to the extent relevant) 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 hereunder. Such opinion may be limited to the Primary Parties. The laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereonany other state.
(2) The A letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇, ▇▇▇▇▇ L.L.P. in form and substance & Bockius LLP addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public 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 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 9(b)(110(b)(1)) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇, ▇▇▇▇▇ L.L.P. & Bockius 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 foregoinginformation obtained in the course of engagement as special counsel, nothing has come to the attention of Elias, Matz, the representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP providing services to the Company that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. them to believe that (i) the Registration Statement and the Prospectus at the time it was declared ordered effective by the Commission and as of the date of such letter or that Commission, (ii) the General Disclosure Package as of the Applicable Closing Time, or (iii) the Prospectus, as of its date and as of the Closing 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 not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and the Prospectus, and counsel need not express no comment or opinion any belief with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateTime, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇counsel to the Primary Parties or other counsel acceptable to the Agent.
(4) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. addressed to the Primary Parties and the Agent relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to 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 ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding)Exhibit C hereto.
(d) At the Closing DateTime, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP dated the Closing DateTime, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100above, the “specified date” referred to in clause (ii)(Biii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than three (3) six business days prior to the Closing DateTime.
(e) At the Closing DateTime, the Shares shall have been approved for listing on the NASDAQ Global Market.
(f) At the Closing Time, 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 Shares 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.
(fg) At the Closing DateTime, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated as of the Closing DateTime, without personal liability to the effect that: (i) they have examined the Registration Statement Prospectus and at the time the Registration Statement 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 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 EffectEffect (as defined in Section 6(m)), whether or not arising in the ordinary course of business other than as disclosed in the Prospectus; (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 DateTime; (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 Time including the conditions contained in this Section 910; (v) no stop order has been issued or, to the their knowledge, is threatened, by the Commission or any other governmental body; and (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledgeand, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Depto
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization Reorganization, are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) The Conversion Registration Statement shall have been declared effective by the Commission and the prospectus and proxy statement contained in the Applications and the Interagency Merger Application shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by FDIC for mailing prior to the Commissioncommencement of the Offering, 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 therefore initiated or, to any of the Primary Parties’ knowledge, or threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, to any of the Primary Parties’ knowledge, or threatened by the Department, the FDIC, the OTSFRB, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇P▇▇▇▇▇ & ▇▇▇B▇▇▇▇ L.L.P.LLP, special counsel for the Primary Parties and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for Agent to the effect that:
(i) The Company is a corporation duly organized and validly existing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own, operate and lease 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 each jurisdiction in which the conduct of its business requires such qualification.
(ii) The Bank is a duly organized and validly existing Pennsylvania chartered savings bank in mutual form and immediately following the completion of the Reorganization will be a validly existing Pennsylvania chartered savings bank in permanent capital stock form of organization, in both instances with full power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the Department, the FDIC and the FRB; the issuance and sale of the capital stock of the Bank to the Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the 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, to the best of such counsel’s knowledge will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction of any kind whatsoever.
(iii) The Bank is a member of the FHLB of Pittsburgh; the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of such insurance are pending or to such counsel’s knowledge threatened.
(iv) The Foundation has been duly organized and is validly existing as a non-stock corporation in good standing under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a bank holding company within the meaning of the BHCA as a result of the issuance of the Foundation Shares to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to established the Foundation and to contribute the Foundation Shares thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the Conversion Application or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Date; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(v) Upon consummation of the Reorganization, the MHC will have been duly organized and will be validly existing as a Pennsylvania chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Prospectus.
(vi) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the 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 of Common Stock of the Company issued to the MHC and the Foundation will have been duly and validly authorized for issuance and will be fully paid and nonassessable; and (c) the shares of Common Stock of the Company to be sold in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in Exhibit C heretothe Plan and the Prospectus, will be fully paid and nonassessable; the issuance of the shares of Common Stock is not subject to preemptive rights under the articles of incorporation, or bylaws of the Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan, and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor.
(vii) The Primary Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan, and 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 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 the laws relating to the rights of the contracting parties to equitable remedies).
(viii) The Plan has been adopted by the board of trustees of the Bank and approved by the members of the Bank, in the manner required by the Conversion Regulations and the Bank’s articles of incorporation and bylaws.
(ix) The Applications have been approved by the Department and the FDIC. The FDIC has also approved the Interagency Merger Application. The FRB has approved the Holding Company Application and the purchase by the Company of all of the issued and outstanding capital stock of the Bank, and the Prospectus and the Proxy Statement have been authorized for use by the Department and the FDIC, and subject to the satisfaction of any conditions set forth in such approvals and clearance under applicable securities laws no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Reorganization.
(x) The purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Department and no action has been taken, or, is, pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xi) The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued, and, no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened.
(xii) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption “The Reorganization and Stock Offering - Material Income Tax Consequences,” and the information in the Prospectus under the caption “The Reorganization and Stock Offering - Material Income Tax Consequences” has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and M▇▇▇▇▇▇ M▇▇▇▇▇ ▇▇▇▇▇ & Associates to the Primary Parties with respect to such matters.
(xiii) The terms and provisions of the Shares conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificates used to evidence the Shares are in due and proper form.
(xiv) At the time the Applications including the Prospectus contained therein was approved by the Department and the FDIC, the Applications, including the Prospectus contained therein complied as to form in all material respects with the requirements of the Conversion Regulations (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation 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 Department and the FDIC approving the Applications.
(xv) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xvi) The Plan has been duly adopted by the required vote of the trustees or directors of the Primary Parties, as the case may be, and by the Bank’s depositors.
(xvii) The information in the Prospectus under the captions “Regulation and Supervision,” “Federal and State Taxation,” “Restrictions on Acquisition of North Penn Bancorp”, “Description of North Penn Bancorp Capital Stock,” “The North Penn Charitable Foundation” and “The Reorganization and Stock Offering” to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xviii) To such counsel’s knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Applications, the Registration Statement or the Prospectus or required to be filed as exhibits thereto other than those filed as exhibits thereto in the Applications, the Registration Statement or the Prospectus. The description of the Applications, the Registration Statement and the Prospectus of such documents and exhibits is accurate in all material respects and fairly presents the information required to be shown.
(xix) The Plan complies in all material respects with all applicable state and federal law, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations; no order has been issued by the Department, the FDIC, the FRB or the Commission or any state authority to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or to such counsel’s knowledge threatened by the Department, the FDIC, the FRB or the Commission or any state authority and, to such counsel’s knowledge no person has sought to obtain regulatory or judicial review of the final action of the Department and the FDIC approving the Plan, the Applications, or the approval by the FRB of the Holding Company Application or the FDIC of the Interagency Merger Application, or the Prospectus.
(xx) The Primary Parties have obtained all material licenses, permits and other governmental authorization currently required for the conduct of their businesses as described in the Registration Statement and the Prospectus and all such licenses, permits and other governmental authorizations are in full force and effect and to such counsel’s knowledge the Primary Parties are in all material respects complying therewith.
(xxi) None of the Primary Parties is in violation of its articles of incorporation and bylaws, or, to such counsel’s knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease, or other instrument to which it is a party or by which it or its property may be bound, except for such defaults or violations which would not have a material adverse effect on the financial condition, earnings, capital, properties or assets of the Primary Parties considered as one enterprise; to such counsel’s knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Primary Parties pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which any of the Primary Parties is a party or by which any of them may be bound, or to which any of the property or assets of any of the Primary Parties are subject; and such action will not result in any violation of the provisions of the articles of incorporation or bylaws of any of the Primary Parties, or result in any violation of any applicable federal or state law, act, regulation or order or court order, writ, injunction or decree.
(xxii) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxiii) The Company’s articles of incorporation and bylaws comply in all material respects with the laws of the Commonwealth of Pennsylvania. The MHC articles of incorporation and Bylaws comply in all material respects with the laws of the Commonwealth of Pennsylvania. The Bank’s articles of incorporation and bylaws comply in all material respects with the laws of the Commonwealth of Pennsylvania
(xxiv) The Bank has duly adopted Pennsylvania stock articles of incorporation and bylaws effective upon consummation of the Reorganization. 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 any material violation of the provisions of the articles of incorporation, or the bylaws of any of the Primary Parties or any material violation of the regulations of the Department, FDIC or FRB, or to the such counsel’s knowledge, any order or court order, writ, injunction or decree that specifically names any of the Primary Parties. The opinion may be limited to matters governed by the laws of the United States States, and in the case of local counsel, the Commonwealth of Pennsylvania. In rendering such opinion regarding Pennsylvania law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(2) The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 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 9(b)(1)) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. to believe that the Registration Statement and the Prospectus 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the 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, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100, 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, without personal liability 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 Prospectus, any Material Adverse Effect; (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 their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Depth
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization Conversion 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 Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the Commission, the Conversion Application, Merger Application and Holding Company Application shall have been approved by the OTS, the FDIC, and the Pennsylvania Department of Banking, as applicable, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore therefor initiated or, to any the knowledge of the Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization Conversion shall have been issued issued, or proceedings therefore therefor initiated or, to any the knowledge of the Primary Parties’ knowledge, threatened by the DepartmentOTS, the FDIC, the OTSPennsylvania Department of Banking, 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 Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., P.C. and/or local counsel acceptable to the Agent Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of 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 duly organized and validly existing Pennsylvania-chartered stock savings bank duly organized and validly existing under the laws of the Commonwealth of Pennsylvania, and upon consummation of the Conversion, the Bank will continue to be a validly existing Pennsylvania-chartered stock savings association, 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 FDIC and the Pennsylvania Department of Banking; 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 MHC is a mutual holding company duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business 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.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and is duly qualified to transact business 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.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus, are permitted by federal law. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, 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 Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of Pittsburgh. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(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 (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer 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 Exhibit C heretothe Plan, will be fully paid and nonassessable; (c) the Foundations Shares to be issued to the Foundation and the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; 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 MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the members of the MHC in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the Pennsylvania Department of Banking, 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 replaced.
(xi) The Conversion Application, the Merger Application and the Holding Company Application have been approved by the OTS, the FDIC and the Pennsylvania Department of Banking, as applicable, and the Prospectus, the Members’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by each of the OTS and the FDIC, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or 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 KPMG LLP 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), the Members’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, the FDIC and the Pennsylvania Department of Banking, 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, the FDIC and the Pennsylvania Department of Banking, 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 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 “Supervision and Regulation,” “Federal and State Taxation,” “Comparison of Stockholders’ Rights for Existing Stockholders of Northwest Bancorp, Inc.” “Restrictions on Acquisition of Northwest Bancshares, Inc.,” “Description of Capital Stock of Northwest Bancshares, Inc. Following the Conversion,” 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 are required to be registered as an investment company under 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 Commonwealth States of PennsylvaniaPennsylvania and Maryland. In rendering such opinion regarding Pennsylvania law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standingreasonably 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.
(2) The letter of Elias, Matz, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, EliasLuse, MatzGorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. , 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 accounting firm 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 9(b)(110(b)(1)) Elias, Matz), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. to believe that the Registration Statement and the Prospectus 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the 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, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100, 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, without personal liability 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 P.C. has not been, since the respective dates as of which information is given in the Prospectus, any Material Adverse Effect; (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 their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Depindependen
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the 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 Offerings 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 Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the CommissionCommission and the Conversion Application approved by the FDIC and the PDOB not later than 5:30 p.m. on the date of this Agreement, 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 therefore therefor initiated or, to 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 Reorganization shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Parties’ ' best knowledge, threatened by the Department, the FDIC, the OTSPDOB, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have each received:
(1) The favorable opinion, dated as of the Closing Date, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., and/or local counsel acceptable to the Agent in form and substance satisfactory to counsel for the Agent as set forth in Exhibit C hereto. The opinion may be limited to matters governed by the laws of the United States and the Commonwealth of Pennsylvania. In rendering such opinion regarding Pennsylvania law, such counsel may rely on local counsel reasonably acceptable to the Agent and its counsel. In addition, in rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials, provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereon.
(2) The letter of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 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 9(b)(1)) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. to believe that the Registration Statement and the Prospectus 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 the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ & Wood LLP, special counsel for the AgentPrimary Parties, in form and substance satisfactory to 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 Commonwealth of Pennsylvania, with respect corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) The Bank is a capital stock savings bank duly organized and validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(iii) The Bank is a member of the FHLB of Pittsburgh and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such matters counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; the activities of the Bank as described in the Agent may reasonably requireProspectus are permitted by the rules, regulations and practices of the FDIC and the PDOB; and the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Liquidation Account" has been reviewed by such opinion may relycounsel and, as to the extent that such information constitutes matters of factlaw or legal conclusions, upon certificates is accurate in all material respects.
(iv) The MHC has been duly organized and is validly existing as a Pennsylvania chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder.
(v) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of officers the Commonwealth of Pennsylvania, and directors are duly qualified to transact business and are in good standing in each jurisdiction in which the conduct of their business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties and the Subsidiaries, taken as a whole; to such counsel's knowledge, the Subsidiaries hold all licenses, certificates and permits from governmental authorities necessary for the conduct of their business, except where the failure to hold such licenses, certificates or permits would not have a material adverse effect on the financial condition, earnings, capital, assets or properties of the Primary Parties and the Subsidiaries, taken as a whole; the Subsidiaries are not in violation of their articles of incorporation or bylaws; all of the outstanding capital stock of the Subsidiaries has been duly authorized and is validly issued, fully paid and nonassessable, and owned directly or indirectly by the Bank, free and clear of any liens, charges, encumbrances or restrictions except such as would not result in a material adverse effect on the financial condition, earnings, capital, assets or properties of the Primary Parties and the Subsidiaries, taken as a whole; all of the leases and subleases material to the business of the Subsidiaries under which the Subsidiaries hold properties are in full force and effect; and the activities of the Subsidiaries are permitted to subsidiaries of a Pennsylvania chartered savings bank by the regulations and the policies and practices of the FDIC and the PDOB and to non-banking subsidiaries of a bank holding company under the BHCA and the regulations of the FRB.
(vi) Upon consummation of the Reorganization, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued to the Bank upon incorporation of the Holding Company, which have been cancelled); the Exchange Shares and the Conversion Shares have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant hereto to the Plan against payment of the consideration calculated as set forth in the Plan and stated on the cover page of the Prospectus, will be fully paid and nonassessable; and the issuance of the Exchange Shares and the Conversion Shares is not subject to preemptive rights under the articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law, except for the subscription rights under the Plan.
(vii) The authorized, issued and outstanding capital stock of the Bank is as set forth in the Prospectus under the caption "Capitalization," and all of the outstanding shares of such capital stock have been duly authorized and validly issued and are fully paid and nonassessable. Upon consummation of the Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable,and all such capital stock will be owned of record and beneficially by the Holding Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(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 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 the laws relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the board of directors of both the MHC and the Bank and approved by the members of the MHC and the eligible voting stockholders of the Bank, as required by the Conversion Regulations and the MHC's and the Bank's respective charter and bylaws.
(x) The FRB has approved the Holding Company Application and, to the best of such counsel's knowledge, no action is pending or threatened respecting the Holding Company Application or the acquisition by the Holding Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application complies as to form in all material respects with the BHCA and all other requirements of the FRB, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the Holding Company is authorized to become a bank holding company and is authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xi) The PDOB has approved the Conversion Application and, to the best of such counsel's knowledge, no action is pending or threatened respecting the PDOB's approval of the Conversion Application; at the time the Conversion Application was approved, the Conversion Application complies in all material respects with Pennsylvania law and all applicable rules, regulations, decisions and orders of the PDOB, includes all documents required to be filed as exhibits thereto, and is complete in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion).
(xii) The FDIC has raised no objection to the Reorganization, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the FDIC's non-objection to the Reorganization; at the time the FDIC issued its non-objection to the Reorganization, the Conversion Application complies in all material respects with the rules and regulations of the FDIC and all other requirements of the FDIC, includes all documents required to be filed as exhibits thereto, and is complete in all material respects (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion).
(xiii) The FDIC has approved the Merger Application, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the FDIC's approval of the Merger Application; the Merger Application complies in all material respects with the Federal Deposit Insurance Act, the rules and regulations of the FDIC and all other requirements of the FDIC, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the FDIC has approved the merger of the MHC with and into the Bank and the merger of Interim with and into the Bank.
(xiv) The PDOB has approved the Merger Application, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the PDOB's approval of the Merger Application; the Merger Application complies in all material respects with Pennsylvania law and all other requirements of the PDOB, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the PDOB has approved the merger of the MHC with and into the Bank and the merger of Interim with and into the Bank.
(xv) 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.
(xvi) No further approval, registration, authorization, consent or other order of any regulatory agency, public board or body is required in connection with the execution
(xvii) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Tax Effects." The information in the Prospectus under the caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Tax Effects" has been reviewed by such counsel may reasonably request and upon the opinion of ▇▇▇▇▇▇▇ ▇fairly describes such opinions rendered by ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPto the Primary Parties with respect to such matters.
(4xviii) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. relating The terms and provisions of the shares of Common Stock conform to the Offering, including description thereof contained in the Agent’s participation therein, Registration Statement and should be furnished the Prospectus and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions "Comparison of Stockholders' Rights," "Restrictions on Acquisition of the Holding Company" and "Description of Capital Stock of the Holding Company," to the Agent with a copy thereof addressed 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 forms of certificates proposed to be used to evidence the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to the necessity shares of obtaining or confirming exemptions, qualifications or the registration of the Common Stock under applicable state securities laware in due and proper form.
(cxix) Concurrently with At the execution of this Agreement, time that the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of Registration Statement became effective the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion including the Prospectus contained therein (as amended or supplemented) (other than the financial statements of statements, notes to financial statements, financial tables or other financial and statistical data included therein and the Bank included in the Prospectus comply appraisal valuation as to which counsel need express no opinion), complied 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 promulgated thereunder.
(xx) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the Commission thereunder and the Conversion Regulations and generally accepted accounting principles consistently applied; invalidity of this Agreement or (ii) stating in effect thatseeking to prevent the Reorganization or the offer, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading sale or issuance of the minutes Shares.
(xxi) The information in the Prospectus under the captions "Regulation," and "The Conversion and Reorganization," to the extent that it constitutes matters of the meetings law, summaries of the Board of Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the Company responsible for financial and accounting legal matters, nothing came documents or proceedings, or legal conclusions, has been prepared by such counsel and is accurate in all material respects (except as to their attention which caused them to believe that: (A) such unaudited the financial statements and other financial information data included in the section titled “Recent Developments” 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 therein as to a date not more than three (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of which such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to roundingcounsel need express no opinion).
(dxxii) At To the Closing Date, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) best of this Section 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100, 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, without personal liability 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 Prospectus, any Material Adverse Effect; (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 their counsel's knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, none of the Primary Parties shall have sustainedis in violation of its articles of incorporation or its charter, since as 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 changecase may be, or any development involving a prospective material change 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, or affecting the general affairs ofRegistration Statement, management, which violation would have a material adverse effect on the financial position, retained earnings, long-term debt, stockholders’ equity or results of operations of any condition of the Primary Parties, Parties considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operationearnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, from ; the execution and as delivery 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 this Agreement by the Primary Parties, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of any of the Primary Parties from the latest date which are material to their business considered as of one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the financial condition any 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 party or by which 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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Dep
Appears in 1 contract
Sources: Agency Agreement (PSB Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing DateTime, true and correctcorrect in all material respects, the condition that the Primary Parties shall have performed all of their obligations hereunder to be performed on or before such dates dates, and to the following further conditions:
(a) The Conversion shall have been approved by the Department and the FDIC. The Registration Statement shall have been declared effective by the Commission, the 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 therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore therefor initiated or, to any of the Primary Parties’ knowledge, threatened by the Department, the FDIC, the OTS, the Commission, or any other governmental body.
(b) At the Closing DateTime, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing DateTime, of Elias, Matz, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, and/or local as special counsel acceptable to the Agent independent directors of PMMHC, in form and substance satisfactory to counsel for the Agent Agent, to the effect that:
(i) HoldCo is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be duly qualified to transact business and will be in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(ii) PMMHC is a duly incorporated and validly subsisting Pennsylvania mutual holding company with corporate power and authority to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect (as defined in Section 6(m)).
(iii) PMHC is a duly incorporated and validly subsisting corporation under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
(iv) PMIC is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. PMIC has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(v) American Millers is a property and casualty insurance company duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with corporate power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a Material Adverse Effect. American Millers has the requisite corporate power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and each other jurisdiction in which it is licensed to carry on an insurance business.
(vi) The authorized capital stock of HoldCo consists of 10,000,000 shares of Common Stock and 1,000,000 shares of preferred stock, having such par value, if any, as the board of directors shall fix and determine; HoldCo has no shares of capital stock issued and outstanding. Immediately upon consummation of the Offering, (a) the issued and outstanding capital stock of HoldCo will be within the range set forth in the Prospectus under the caption “Capitalization”; (b) the shares of Common Stock of HoldCo to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by HoldCo pursuant to the Plan against payment of the consideration calculated as set forth in Exhibit C hereto. the Plan, will be fully paid and nonassessable; and (c) the issuance of the shares of Common Stock of HoldCo will not be subject to preemptive rights under the articles of incorporation or bylaws of HoldCo, or arising or outstanding by operation of law or, to the knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan and restrictions arising under the 1998 Order.
(vii) The opinion 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 to matters governed by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally.
(viii) The Plan has been duly adopted by the Board of Directors of PMMHC in the manner required by PMMHC’s articles of incorporation and bylaws.
(ix) Upon consummation of the Offering, to the knowledge of such counsel, (a) the Offering was made in all material respects in accordance with the Plan, (b) all terms, conditions, requirements and provisions with respect to the Conversion and Offering imposed by the Commission, the Department, or any other Pennsylvania governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained, and (c) all notice and waiting periods were satisfied or waived; provided, however, that no opinion need be expressed concerning the state securities or blue sky laws or foreign securities laws of various jurisdictions in which the United States Shares will be offered.
(x) The Registration Statement has become effective under the 1933 Act and, to such counsel’s knowledge after making inquiry of the Commission, and based upon representations made by staff of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel’s knowledge, no proceedings for that purpose have been instituted or threatened.
(xi) The description of the shares of Common Stock of HoldCo contained in the Registration Statement and the Commonwealth Prospectus, insofar as such statements purport to summarize certain provisions of Pennsylvania. In rendering the articles of incorporation and bylaws of HoldCo, provide a fair summary thereof, and the forms of certificates proposed to be used to evidence the shares of Common Stock of HoldCo comply in all material respects with all applicable laws and regulations, including, without limitation, as to form.
(xii) At the time that the Registration Statement became effective, the Registration Statement, including the Prospectus contained therein, as amended or supplemented (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiii) To such opinion regarding Pennsylvania lawcounsel’s knowledge, such counsel may rely on local counsel reasonably acceptable there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions “BUSINESS — “ Regulation,” “RESTRICTIONS ON ACQUISITION OF THE HOLDING COMPANY,” and “DESCRIPTION OF CAPITAL STOCK,” to the Agent and extent that it constitutes summaries of legal matters, documents or proceedings, or legal conclusions, fairly presents in all material respects the information required to be presented in Form S-1.
(xv) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940, as amended.
(xvi) To such counsel’s knowledge, none of the Primary Parties is in violation of its articles of incorporation or its bylaws as in effect at the Closing Time or, to such counsel’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 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. In addition, to such counsel’s knowledge, 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 any material violation of the provisions of the articles of incorporation or the bylaws (or other constituent documents) of any of the Primary 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. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems properwithout independent investigation, on certificates of responsible officers of the Primary Parties (to the extent relevant) 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 hereunder. Such opinion may be limited to the Primary Parties. The laws of the Commonwealth of Pennsylvania and the federal securities laws of the United States of America, and such opinion will not be deemed to be rendering any opinion or any other statements regarding the regulatory laws of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not justified in relying thereonany other state.
(2) The A letter of Elias, Matz, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in form and substance LLP addressed to the Agent to the effect that during the preparation of the Registration Statement and the Prospectus, Elias, Matz, representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public 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 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 9(b)(110(b)(1)) Elias, Matz, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. 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 foregoinginformation obtained in the course of engagement as special counsel, nothing has come to the attention of Elias, Matz, the representatives of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. LLP providing services to the Company that caused Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. them to believe that (i) the Registration Statement and the Prospectus at the time it was declared ordered effective by the Commission and as of the date of such letter or that Commission, (ii) the General Disclosure Package as of the Applicable Closing Time, or (iii) the Prospectus, as of its date and as of the Closing 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 not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and the Prospectus, and counsel need not express no comment or opinion any belief with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in or information concerning internal controls over financial reporting contained in, the Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing DateTime, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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 ▇▇▇▇▇▇▇ ▇counsel to the Primary Parties or other counsel acceptable to the Agent.
(4) A blue sky memorandum from ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
(4) A Blue Sky Memorandum from Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. addressed to the Primary Parties and the Agent relating to the Offering, including the Agent’s participation therein, and should be furnished to the Agent with a copy thereof addressed to the Agent or upon which Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state the Agent may rely. The Blue Sky Memorandum will relate to 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 ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP, dated the date hereof and addressed to the Agent, such letter (i) confirming that ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP 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 no information concerning its relationship with or interests in the Primary Parties is required by the Applications or Item 13 of the Registration Statement, and stating in effect that in ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP’s opinion the financial statements of the Bank 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 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 Trustees or the Board of Directors, as applicable, of the Primary Parties, the Audit Committee of the Bank, a review (in accordance with Statement of Auditing Standards No. 100, Interim Financial Information) of the unaudited interim financial information as of and for the interim period ending March 31, 2007, and consultations with officers of the 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” 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 (3) business days prior to the date of the Prospectus there was any increase in borrowings (defined as advances from the FHLB of Pittsburgh, securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans, special mention loans or decrease in total assets, allowance for loan losses, total deposits, or equity capital of the Bank at the date of such letter as compared with the amounts shown in the March 31, 2007 unaudited statement of financial condition, or there was any decrease in interest income, net interest income, net interest income after the provision for loan losses, income before income taxes, or net income of the Bank 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 Bank, which are subject to the internal controls of the accounting system of the Bank 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 the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding)Exhibit C hereto.
(d) At the Closing DateTime, the Agent shall receive a letter from ▇▇▇▇▇ ▇▇▇▇▇▇ Company KPMG LLP dated the Closing DateTime, addressed to the Agent, confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 9 and confirming that the review of the unaudited interim financial information as of and for the interim period ending March 31, 2007 is in accordance with Statement on Auditing Standards No. 100above, the “specified date” referred to in clause (ii)(Biii)(C) and (D) thereof to be a date specified in such letter, which shall not be more than three (3) business days prior to the Closing DateTime.
(e) At the Closing DateTime, the Shares shall have been approved for listing on the NASDAQ Global Market.
(f) At the Closing Time, 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 Shares 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.
(fg) At the Closing DateTime, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated as of the Closing DateTime, without personal liability to the effect that: (i) they have examined the Registration Statement Prospectus and at the time the Registration Statement 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 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 EffectEffect (as defined in Section 6(m)), whether or not arising in the ordinary course of business other than as disclosed in the Prospectus; (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 their knowledge, is threatened, by the Commission or any other governmental body; (vi) no order suspending the Reorganization, including the Conversion and the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Department, the FDIC, the OTS, the Commission, or any other federal or state authority; (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Department, the FDIC or the OTS in approving the Plan or to enjoin the Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., 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) Prior to and at the Closing Date, 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, considered as one enterprise, 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 the 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 the Agent there shall have been no Material Adverse Effect on the financial condition or in results of operation, capital, properties or business affairs 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 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 Department, the FDIC, or the OTS any direction (oral or written, other than directions applicable to all state-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 the Agent) and which would reasonably be expected to have a Material Adverse Effect; (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 Adverse Effect; 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 the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion Application and copies of any letters from the Department approving the Conversion Application and/or authorizing the use of the Prospectus or the Dep
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